1. (1) The requirements of subdivisions (c), (d) and (h)-(j) of this section apply to owners and operators of all hazardous waste facilities, except as provided otherwise in this section or in section 373-2.1(a) of this Subpart.

2. (2) The requirements of subdivisions (e) and (f) of this section apply only to owners and operators of:

   1. (i) disposal facilities;
   2. (ii) piles, and surface impoundments from which the owner or operator intends to remove the wastes at closure, to the extent that these sections are made applicable to such facilities in sections 373-2.11(f) and 373-2.12(h) of this Subpart;
   3. (iii) tank systems that are required under section 373-2.10(h) of this Subpart to meet the requirements for landfills; and
   4. (iv) containment buildings that are required under section 373-2.30(c) of this Subpart to meet the requirements for landfills.
3. (3) The State and the Federal government are exempt from the requirements of this section.

4. (4) The department may replace all or part of the requirements of this section applying to a regulated unit with alternative requirements for financial assurance set out in the permit or in an enforceable document (as defined in section 373-1.2[e][3] of this Part, whre the department:

   1. (i) prescribes alternative requirements for the regulated unmit under sections 373-2.6(a)(6) and/or 373-2.7(a)(3) of this Subpart; and
   2. (ii) determines that it is not necessary to apply the requirements of this section because the alternative financial assurance requirements will protect human health and the environment.

5. (5) The total cost estimate for a facility must include all applicable financial assurance obligations (closure, post-closure, corrective action).

   (b) Definitions of terms as used in this section.

6. (1) Closure plan means the plan for closure prepared in accordance with the requirements of section 373-2.7(c) of this Subpart.
7. (2) Current closure cost estimate means the most recent of the estimates prepared in accordance with paragraphs (c)(1), (2) and (3) of this section.
8. (3) Current post-closure cost estimate means the most recent of the estimates prepared in accordance with paragraphs (e)(1), (2) and (3) of this section.
9. (4) Parent corporation means a corporation which directly owns at least 50 percent of the voting stock of the corporation which is the facility owner or operator; the latter corporation is deemed a subsidiary of the parent corporation.
10. (5) Post-closure plan means the plan for post-closure care prepared in accordance with the requirements of section 373-2.7(g) through (j) of this Subpart.
11. (6) Revenue-oriented or revenue-oriented hazardous waste management facility means any facility (as defined in section 27-0917[7] of the ECL or Part 370 of this Title) for which a majority of both its operating revenues and profits after tax at that facility, for the prior three years and for the current and next year, have been and are expected to be attributable to the transportation, storing, handling, disposal, treatment or management of solid and hazardous wastes or related activities, or to the ownership of or leasehold or other interest in any persons, facilities, or other assets engaged in or used for such activities. In making such calculations under this provision, all sources of operating revenues and profits (both before and after tax) shall be included. The commissioner may request any person to show, to the satisfaction of the commissioner, that the facility is not a revenue-oriented hazardous waste management facility by this definition. The commissioner may require a person to present its statements of account, independently audited by a certified public accountant, and other records to make this showing.

12. (7) The following terms are used in the specifications for the financial tests for closure, post-closure care and liability coverage. The definitions are intended to assist in the understanding of these regulations and are not intended to limit the meanings of terms in a way that conflicts with generally accepted accounting practices.

    1. (i) Assets means all existing and all probable future economic benefits obtained or controlled by a particular entity.
    2. (ii) Current assets means cash or other assets or resources commonly identified as those which are reasonably expected to be realized in cash or sold or consumed during the normal operating cycle of the business.
    3. (iii) Current liabilities means obligations whose liquidation is reasonably expected to require the use of existing resources properly classifiable as current assets or the creation of other current liabilities.
    4. (iv) Current plugging and abandonment cost estimate means the most recent of the estimates prepared in accordance with 40 CFR 144.62 (see section 370.1[e] of this Title).
    5. (v) Independently audited refers to an audit performed by an independent certified public accountant in accordance with generally accepted auditing standards.
    6. (vi) Liabilities means probable future sacrifices of economic benefits arising from present obligations to transfer assets or provide services to other entities in the future as a result of past transactions or events.
    7. (vii) Net working capital means current assets minus current liabilities.
    8. (viii) Net worth means total assets minus total liabilities, and is equivalent to owner's equity.
    9. (ix) Tangible net worth means the tangible assets that remain after deducting liabilities; such assets would not include intangibles such as goodwill and rights to patents or royalties.

13. (8) In the liability insurance requirements, the terms bodily injury and property damage shall have the meanings given to these terms by applicable State law. However, these terms do not include those liabilities which, consistent with standard industry practices, are excluded from coverage in liability policies for bodily injury and property damage. The department intends the meanings or other terms used in the liability insurance requirements to be consistent with their common meanings within the insurance industry. The definitions given below of several of the terms are intended to assist in the understanding of these regulations, and are not intended to limit their meanings in a way that conflicts with the general industry usage.

    1. (i) Accidental occurrence means an accident, including continuous or repeated exposure to conditions, which results in bodily injury or property damage neither expected nor intended from the standpoint of the insured.
    2. (ii) Legal defense costs means any expenses that an insurer incurs in defending against claims of third parties brought under the terms and conditions of an insurance policy.
    3. (iii) Nonsudden accidental occurrence means an occurrence which takes place over time and involves continuous or repeated exposure.
    4. (iv) Sudden accidental occurrence means an occurrence which is not continuous or repeated in nature.

14. (9) Substantial business relationship means the extent of a business relationship necessary under applicable State law to make a guarantee contract issued incident to that relationship valid and enforceable. A substantial business relationship must arise from a pattern of recent or ongoing business transactions, in addition to the guarantee itself, such that a currently existing business relationship between the guarantor and the owner or operator is demonstrated to the satisfaction of the commissioner.

    (c) Cost estimates for closure.

15. (1) The owner or operator must have a detailed written estimate, in current dollars, of the cost of closing the facility in accordance with the requirements in section 373-2.7(b) through (f) and applicable closure requirements in sections 373-2.9(i), 373-2.10(h), 373-2.11(f), 373-2.12(h), 373-2.14(g), 373-2.15(h), 373-2.24(b), (c) and (d), and 373-2.30(c) of this Subpart.

    1. (i) The estimate must equal the cost of final closure at the point in the facility's active life when the extent and manner of its operation would make closure the most expensive, as indicated by its closure plan (see section 373-2.7[c] [2] of this Subpart).
    2. (ii) The closure cost estimate must be based on the costs to the owner or operator of hiring a third party to close the facility. A third party is a party who is neither a parent nor a subsidiary of the owner or operator. (See definition of parent corporation in subdivision [b] of this section). The owner or operator may use costs for onsite disposal if the owner or operator can demonstrate that onsite disposal capacity will exist at all times over the life of the facility.
    3. (iii) The closure cost estimate may not incorporate any salvage value that may be realized with the sale of hazardous wastes, or nonhazardous wastes if applicable under section 373-2.7(d)(4) of this Subpart, facility structures or equipment, land, or other assets associated with the facility at the time of partial or final closure.
    4. (iv) The owner or operator may not incorporate a zero cost for hazardous wastes, or nonhazardous wastes if applicable under section 373-2.7(d)(4) of this Subpart, that might have economic value.

16. (2) During the active life of the facility, the owner or operator must adjust the closure cost estimate for inflation within 60 days prior to the anniversary date of the establishment of the financial instruments used to comply with subdivision (d) of this section. For owners and operators using the financial test or corporate guarantee, the closure cost estimate must be updated for inflation within 30 days after the close of the firm's fiscal year and before submission of updated information to the commissioner as specified in section 373-2.8(d)(5)(iii) of this Subpart. The adjustment may be made by recalculating the maximum costs of closure in current dollars, or by using an inflation factor derived from the most recent Implicit Price Deflator for Gross Domestic Product published by the U.S. Department of Commerce in its Survey of Current Business, as specified in subparagraphs (i) and (ii) of this paragraph. The inflation factor is the result of dividing the latest published annual deflator by the deflator for the previous year.

    1. (i) The first adjustment is made by multiplying the closure cost estimate by the inflation factor. The result is the adjusted closure cost estimate.
    2. (ii) Subsequent adjustments are made by multiplying the latest adjusted closure cost estimate by the latest inflation factor.
17. (3) During the active life of the facility, the owner or operator must revise the closure cost estimate no later than 30 days after the commissioner has approved the request to modify the closure plan, if the change in the closure plan increases the cost of closure. The revised closure cost estimate must be adjusted for inflation as specified in paragraph (2) of this subdivision.

18. (4) The owner or operator must keep the following at the facility during the operating life of the facility: the latest closure cost estimate prepared in accordance with paragraphs (1) and (3) of this subdivision and, when this estimate has been adjusted in accordance with paragraph (2), the latest adjusted closure cost estimate.

    (d) Financial assurance for closure.

    An owner or operator of each facility must establish financial assurance for closure of the facility. The owner or operator must choose from the options as specified in paragraphs (1) through (5) of this subdivision. An owner or operator may also use a combination of the options specified in paragraphs (1) through (8) to provide the total amount of financial assurance for the closure of the facility.

19. (1) Closure trust fund.

    1. (i) An owner or operator may satisfy the requirements of this subdivision by establishing a closure trust fund which conforms to the requirements of this paragraph and submitting an originally signed duplicate of the trust agreement to the commissioner at least 60 days before the date on which hazardous waste is first received for treatment, storage or disposal. 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.
    2. (ii) The wording of the trust agreement must be identical to the wording specified in paragraph (j)(1) of this section, and the trust agreement must be accompanied by a formal certification of acknowledgement (for example, see the end of paragraph [j][1]). Schedule A of the trust agreement must be updated within 60 days after a change in the amount of the current closure cost estimate covered by the agreement.

    3. (iii) Payments into the trust fund must be made annually by the owner or operator over the first five years of operation or over the remaining operating life of the facility as estimated in the closure plan, whichever period is shorter; this period is hereinafter referred to as the "pay-in period." The payments into the closure trust fund must be made as follows:

       1. (a) For a new or revenue-oriented facility, the first payment must be equal to the total closure cost estimate, or an alternative mechanism must be provided which, when combined with the trust fund, provides financial assurance for an amount at least equal to the current closure cost estimate. For a new facility, this payment will be made before the initial receipt of hazardous waste for treatment, storage or disposal. A receipt from the trustee for this payment must be submitted by the owner or operator to the Commissioner of Environmental Conservation before this initial receipt of hazardous waste. For a revenue-oriented facility, the first payment is due 90 days after the date that these regulations are promulgated.

       2. (b) For an existing facility which is not revenue-oriented, the first payment must be at least equal to the current closure cost estimate, except as provided in paragraph (6) of this subdivision, divided by the number of years in the pay-in period. Subsequent payments must be made no later than 30 days after each anniversary date of the first payment. The amount of each subsequent payment must be determined by this formula:

          Next payment =^CE-CV/_Y

          where CE is the current closure cost estimate, CV is the current value of the trust fund, and Y is the number of years remaining in the pay-in period.

       3. (c) If an owner or operator establishes a trust fund as specified in this paragraph, and the value of that trust fund is less than the current closure cost estimate when a permit is awarded for the facility, the amount of the current closure cost estimate still to be paid into the trust fund must be paid in over the pay-in period as defined in this subparagraph. Payments must continue to be made no later than 30 days after each anniversary date of the first payment made pursuant to Subpart 373-3 of this Part. The amount of each payment must be determined by this formula:

          Next payment =^CE-CV/_Y

          where CE is the current closure cost estimate, CV is the current value of the trust fund, and Y is the number of years remaining in the pay-in period.

    4. (iv) The owner or operator may accelerate payments into the trust fund or may deposit the full amount of the current closure cost estimate at the time the fund is established. However, the owner or operator must maintain the value of the fund at no less than the value that the fund would have if annual payments were made as specified in subparagraph (iii) of this paragraph.
    5. (v) If the owner or operator established a closure trust fund after having used one or more alternate mechanisms specified in this section or in section 373-3.8(d) of this Part, the first payment must be in at least the amount that the fund would contain if the trust fund were established initially and annual payments made according to specifications of this paragraph and section 373-3.8(d)(1), as applicable.
    6. (vi) After the pay-in period is completed, whenever the current closure cost estimate changes, the owner or operator must compare the new estimate with the trustee's most recent annual valuation of the trust fund. If the value of the fund is less than the amount of the new estimate, the owner or operator, within 60 days after the change in the cost estimate, must either deposit an amount into the fund so that its value after this deposit at least equals the amount of the current closure cost estimate, or obtain other financial assurance as specified in this subdivision to cover the difference.
    7. (vii) If the value of the trust fund is greater than the total amount of the current closure cost estimate, the owner or operator may submit a written request to the commissioner for release of the amount in excess of the current closure cost estimate.
    8. (viii) If an owner or operator substitutes other financial assurance as specified in this subdivision for all or part of the trust fund, the owner or operator may submit a written request to the commissioner for release of the amount in excess of the current closure cost estimate covered by the trust fund.
    9. (ix) Within 60 days after receiving a request from the owner or operator for release of funds as specified in subparagraphs (vii) and (viii) of this paragraph, the commissioner will instruct the trustee to release to the owner or operator such funds as the commissioner specifies in writing.
    10. (x) After beginning partial or final closure, an owner or operator or another person authorized to conduct partial or final closure may request reimbursements for partial or final closure expenditures by submitting itemized bills to the commissioner. The owner or operator may request reimbursements for partial closure only if sufficient funds are remaining in the trust fund to cover the maximum costs of closing the facility over its remaining operating life. Within 60 days after receiving bills for partial or final closure activities, the commissioner will instruct the trustee to make reimbursements in those amounts as the commissioner specifies in writing, if the commissioner determines that the partial or final closure expenditures are in accordance with the approved closure plan, or otherwise justified. If the commissioner has reason to believe that the maximum cost of closure over the remaining life of the facility will be significantly greater than the value of the trust fund, the commissioner may withhold reimbursements of such amounts as he or she deems prudent until the commissioner determines, in accordance with paragraph (8) of this subdivision, that the owner or operator is no longer required to maintain financial assurance for final closure of the facility. If the commissioner does not instruct the trustee to make such reimbursements, the commissioner will provide the owner or operator with a detailed written statement of reasons.

    11. (xi) The commissioner will agree to termination of the trust when:

        1. (a) an owner or operator substitutes alternate financial assurance as specified in this subdivision; or
        2. (b) the commissioner releases the owner or operator from the requirements of this subdivision in accordance with paragraph (8) of this subdivision.

20. (2) Surety bond.

    1. (i) An owner or operator may satisfy the requirements of this subdivision by obtaining a surety bond which conforms to the requirements of this paragraph and submitting the bond to the commissioner. An owner or operator of a new facility must submit the bond to the commissioner at least 60 days before the date on which hazardous waste is first received for treatment, storage or disposal. The bond must be effective before this initial receipt of hazardous waste. The surety company issuing the bond must, at a minimum, be among those listed as acceptable sureties on Federal bonds in Circular 570 of the U.S. Department of the Treasury.
    2. (ii) The wording of the surety bond must be identical to the wording specified in paragraph (j)(2) of this section.

    3. (iii) The owner or operator who uses a surety bond to satisfy the requirements of this subdivision must also establish a standby trust fund.. Under the terms of the bond, all payments made thereunder will be deposited by the surety directly into the standby trust fund in accordance with instructions from the commissioner. The standby trust fund must meet the requirements specified in paragraph(1) of this subdivision, except that:

       1. (a) an originally signed duplicate of the trust agreement must be submitted to the commissioner with the surety bond; and

       2. (b) until the standby trust fund is funded pursuant to the requirements of this subdivision, the following are not required by these regulations:

          1. (1) payments into the trust fund as specified in paragraph (1) of this subdivision;
          2. (2) updating of Schedule A of the trust agreement (see paragraph [j][1] of this section) to show current closure cost estimates;
          3. (3) annual valuations as required by the trust agreement; and
          4. (4) notices of nonpayment as required by the trust agreement.

    4. (iv) The bond must guarantee that the owner or operator will:

       1. (a) fund the standby trust fund in an amount equal to the penal sum of the bond before the beginning of final closure of the facility; or
       2. (b) fund the standby trust fund in an amount equal to the penal sum within 15 days after an order to begin final closure is issued by the commissioner or a U.S. district court or other court of competent jurisdiction; or
       3. (c) provide alternate financial assurance as specified in this subdivision, and obtain the commissioner's written approval of the assurance provided, within 90 days after receipt by both the owner or operator and the commissioner of a notice of cancellation of the bond from the surety.
    5. (v) Under the terms of the bond, the surety will become liable on the bond obligation when the owner or operator fails to perform as guaranteed by the bond.
    6. (vi) The penal sum of the bond must be in an amount at least equal to the current closure cost estimate, except as provided in paragraph (6) of this subdivision.
    7. (vii) Whenever the current closure cost estimate increases to an amount greater than the penal sum, the owner or operator, within 60 days after the increase, must either cause the penal sum to be increased to an amount at least equal to the current closure cost estimate and submit evidence of such increase to the commissioner, or obtain other financial assurance as specified in this subdivision to cover the increase. Whenever the current closure cost estimate decreases, the penal sum may be reduced to the amount of the current closure cost estimate following written approval by the commissioner.
    8. (viii) Under the terms of the bond, the surety may cancel the bond by sending notice of cancellation by certified mail, return receipt requested, to the owner or operator and to the commissioner. 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 commissioner, as evidenced by the return receipts.
    9. (ix) The owner or operator may cancel the bond if the commissioner has given prior written consent based on the receipt of evidence of alternate financial assurance as specified in this subdivision.

21. (3) Closure letter of credit.

    1. (i) An owner or operator may satisfy the requirements of this subdivision by obtaining an irrevocable standby letter of credit which conforms to the requirements of this paragraph and submitting the letter to the commissioner. An owner or operator of a new facility must submit the letter of credit to the commissioner at least 60 days before the date on which the hazardous waste is first received for treatment, storage or disposal. The letter of credit must be effective before this initial receipt of hazardous waste. The issuing institution must be an entity which has the authority to issue letters of credit and whose letter-of-credit operations are regulated and examined by a Federal or State agency.
    2. (ii) The wording of the letter of credit must be identical to the wording specified in paragraph (j)(3) of this section.

    3. (iii) An owner or operator who uses a letter of credit to satisfy the requirements of this subdivision must also establish a standby trust fund. Under the terms of the letter of credit, all amounts paid pursuant to a draft by the commissioner will be deposited by the issuing institution directly into the standby trust fund in accordance with instructions from the commissioner. This standby trust fund must meet the requirements of the trust fund specified in paragraph (1) of this subdivision, except that:

       1. (a) an originally signed duplicate of the trust agreement must be submitted to the commissioner with the letter of credit; and

       2. (b) unless the standby trust fund is funded pursuant to the requirements of this subdivision, the following are not required by these regulations:

          1. (1) payments into the trust fund as specified in paragraph (1) of this subdivision;
          2. (2) updating of Schedule A of the trust agreement (see paragraph [j][1] of this section) to show current closure cost estimates;
          3. (3) annual valuations as required by the trust agreement; and
          4. (4) notices of nonpayment as required by the trust agreement.
    4. (iv) The letter of credit must be accompanies by a letter from the owner or operator referring to the letter of credit by number, issuing institution and date, and providing the following information: the EPA identification number, name and address of the facility, and the amount of funds assured for closure of the facility by the letter of credit.
    5. (v) The letter of credit must be irrevocable and issued for a period of at least one year. The letter of credit must provide that the expiration date will be automatically extended for a period of at least one year unless, at least 120 days before the current expiration date, the issuing institution notifies both the owner or operator and the commissioner by certified mail, return receipt requested, of a decision not to extend the expiration date. Under the terms of the letter of credit, the 120 days will begin on the date when both the owner or operator and the commissioner have received the notice, as evidenced by the return receipts.
    6. (vi) The letter of credit must be issued in an amount at least equal to the current closure estimate, except as provided in paragraph (6) of this subdivision.
    7. (vii) Whenever the current closure cost estimate increases to an amount greater than the amount of the credit, the owner or operator, within 60 days after the increase, must either cause the amount of the credit to be increased so that it at least equals the current closure cost estimate, and submit evidence of such increase to the commissioner, or obtain other financial assurance as specified in this subdivision to cover the increase. Whenever the current closure cost estimate decreases, the amount of the credit may be reduced to the amount of the current closure cost estimate following written approval by the commissioner.
    8. (viii) Following a determination, pursuant to section 373-2.7 of this Subpart, that the owner or operator has failed to perform final closure in accordance with the closure plan and other permit requirements when required to do so, the commissioner may draw on the letter of credit.
    9. (ix) If the owner or operator does not establish alternate financial assurance, as specified in this subdivision, and obtain written approval of such alternate assurance from the commissioner within 90 days after receipt by both the owner or operator and the commissioner of a notice from issuing institution that it has decided not to extend the letter of credit beyond the current expiration date, the commissioner will draw on the letter of credit. The commissioner may delay the drawing if the issuing institution grants an extension of the term of the credit. During the last 30 days of any such extension, the commissioner will draw on the letter of credit if the owner or operator has failed to provide alternate financial assurance as specified in this subdivision and obtain written approval of such assurance from the commissioner.

    10. (x) The commissioner will return the letter of credit to the issuing institution for termination when:

        1. (a) an owner or operator substitutes alternate financial assurance as specified in this subdivision; or
        2. (b) the commissioner releases the owner or operator from the requirements of this subdivision in accordance with paragraph (8) of this subdivision.

22. (4) Closure insurance.

    1. (i) An owner or operator may satisfy the requirements of this subdivision by obtaining closure insurance which conforms to the requirements of this paragraph and submitting a certificate of such insurance to the department. An owner or operator of a new facility must submit the certificate of insurance to the department at least 60 days before the date on which hazardous waste is first received for treatment, storage or disposal. The insurance must be effective before this initial receipt of hazardous waste. At a minimum, the insurer must be authorized by the Superintendent of the New York State Department of Financial Services to conduct the business of insurance, or eligible to provide insurance as an excess or surplus lines insurer, in New York State.
    2. (ii) The wording of the certificate of insurance must be identical to the wording specified in paragraph (j)(4) of this section.
    3. (iii) The closure insurance policy must be issued for a face amount at least equal to the current closure cost estimate, except as provided in paragraph (6) of this subdivision. The term limits of liability means the total amount the insurer is obligated to pay under the policy. Actual payments by the insurer will not change the limits of liability, although the insurer's future liability will be lowered by the amount of the payments.
    4. (iv) The closure insurance policy must guarantee that funds will be available to close the facility wherever final closure occurs. The policy must also guarantee that once final closure begins, the insurer will be responsible for paying out funds, up to an amount equal to the limits of liability of the policy, upon the direction of the commissioner, to such party or parties as the commissioner specifies.
    5. (v) After beginning partial or final closure, an owner or operator or any other person authorized to conduct closure may request reimbursements for closure expenditures by submitting itemized bills to the commissioner. The owner or operator may request reimbursements for partial closure only if the remaining value of the policy is sufficient to cover the maximum costs of closing the facility over its remaining operating life. Within 60 days after receiving bills for closure activities, the commissioner will instruct the insurer to make reimbursements in such amounts as the commissioner specifies in writing, if the commissioner determines that the partial or final closure expenditures are in accordance with the approved closure plan, or otherwise justified. If the commissioner has reason to believe that the maximum cost of closure over the remaining life of the facility will be significantly greater than the face amount of the policy, the commissioner may withhold reimbursements of such amounts as he or she deems prudent until the commissioner determines, in accordance with paragraph (8) of this subdivision, that the owner or operator is no longer required to maintain financial assurance for final closure of the facility. If the commissioner does not instruct the insurer to make such reimbursements, the commissioner will provide the owner or operator with a detailed written statement of reasons.
    6. (vi) The owner or operator must maintain the policy in full force and effect until the commissioner consents to termination of the policy by the owner or operator as specified in subparagraph (x) of this paragraph. Failure to pay the premium, without substitution of alternate financial assurance as specified in this subdivision, will constitute a significant violation of these regulations, warranting such remedy as the commissioner deems necessary. Such violation will begin upon receipt by the commissioner 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. (vii) 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. (viii) 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 limits of liability 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, return receipt requested, to the owner or operator and the commissioner. Cancellation, termination or failure to renew amy not occur, however, during the 120 days beginning with the date of receipt of the notice by both the commissioner 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:

       1. (a) the commissioner deems the facility abandoned;
       2. (b) interim status is terminated or revoked;
       3. (c) closure is ordered by the commissioner or a United States district court or other court of competent jurisdiction;
       4. (d) the owner or operator is named as debtor in a voluntary or involuntary proceeding under 11 USCA (Bankruptcy); or
       5. (e) the premium due is paid.
    9. (ix) Whenever the current closure cost estimate increases to an amount greater than the limits of liability of the policy; the owner or operator, within 60 days after the increase, must either cause the limits of liability to be increased to an amount at least equal to the current closure cost estimate and submit evidence of such increase to the commissioner, or obtain other financial assurance as specified in this subdivision to cover the increase. Whenever the current closure cost estimate decreases, the limits of liability may be reduced to the amount of the current closure cost estimate following written approval by the commissioner.

    10. (x) The commissioner will give written consent to the owner or operator that the insurance policy may be terminated when:

        1. (a) an owner or operator substitutes alternate financial assurance as specified in this subdivision; or
        2. (b) the commissioner releases the owner or operator from the requirements of this subdivision in accordance with paragraph (8) of this subdivision.

23. (5) Financial test and guarantee for closure.

    1. (i) An owner or operator of a facility which is not a revenue-oriented facility, may satisfy the requirements of this subdivision by demonstrating that the owner or operator passes a financial test as specified in this paragraph. No revenue-oriented facilities will be allowed to use this financial assurance mechanism. To pass this test, the owner or operator must meet the criteria of either clause (a) or (b) of this subparagraph.

       1. (a) The owner or operator must have:

          1. (1) 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;
          2. (2) net working capital and tangible net worth each at least six times the sum of the current closure and post-closure cost estimates and the current plugging and abandonment cost estimates;
          3. (3) tangible net worth of at least $10 million; and
          4. (4) assets in the United States amounting to at least 90 percent of total assets or at least six times the sum of the current closure and post-closure cost estimates and the current plugging and abandonment costs.

       2. (b) The owner or operator must have:

          1. (1) a current rating for their most recent bond insurance of AAA, AA, A or BBB as issued by Standard and Poor's, or Aaa, Aa, A, or Baa as issued by Moody's;
          2. (2) tangible net worth at least six times the sum of the current closure and post-closure cost estimates and the current plugging and abandonment costs;
          3. (3) tangible net worth of at least $10 million; and
          4. (4) 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 closure and post-closure cost estimates and the current plugging and abandonment costs.
    2. (ii) The phrases "current closure and post-closure cost estimates" and "current plugging and abandonment cost estimates," as used in subparagraph (i) of this paragraph 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.

    3. (ii) To demonstrate that he or she meets this test, the owner or operator must submit the following items to the commissioner:

       1. (a) a letter signed by the owner's or operator's chief financial officer and worded as specified in paragraph (j)(5) of this section;
       2. (b) 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

       3. (c) a special report from the owner's or operator's independent certified public accountant to the owner or operator, stating that:

          1. (1) the accountant has compared the data which the letter from the chief financial officer specifies as having been derived from the independently audited, year-end financial statements for the latest fiscal year with the amounts in such financial statements; and
          2. (2) in connection with that procedure, no matters came to the accountant's attention which caused the accountant to believe that the specified data should be adjusted.
    4. (iv) An owner or operator of a new facility must submit the items specified in subparagraph (iii) of this paragraph to the commissioner at least 60 days before the date on which hazardous waste is first received for treatment, storage or disposal.
    5. (v) After the initial submission of items specified in subparagraph (iii) of this paragraph, the owner or operator must send updated information to the commissioner within 90 days after the close of each succeeding fiscal year. This information must consist of all three items specified in subparagraph (iii) of this paragraph.
    6. (vi) If the owner or operator no longer meets the requirements of subparagraph (i) of this paragraph, the owner or operator must send notice to the commissioner of intent to establish alternate financial assurance as specified in this subdivision. The notice must be sent by certified mail, return receipt requested, 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. (vii) The commissioner may, based on reasonable belief that the owner or operator may no longer meet the requirements of subparagraph (i) of this paragraph, require reports of financial condition at any time from the owner or operator in addition to those specified in subparagraph (iii) of this paragraph. If the commissioner finds, on the basis of such reports or other information that the owner or operator no longer meets the requirements of subparagraph (i) of this paragraph, the owner or operator must provide alternate financial assurance as specified in this subdivision within 30 days after notification of such a finding.
    8. (viii) The commissioner may disallow use of this test on the basis of qualifications in the opinion expressed by the independent certified public accountant in his or her report on examination of the owner's or operator's financial statements (see clause [iii][b] of this paragraph). An adverse opinion or a disclaimer of opinion will be cause for disallowance. The commissioner will evaluate other qualifications on an individual basis. The owner or operator must provide alternate financial assurance as specified in this subdivision within 30 days after notification of the disallowance.

    9. (ix) The owner or operator is no longer required to submit the items specified in subparagraph (iii) of this paragraph when:

       1. (a) an owner or operator substitutes alternate financial assurance as specified in this subdivision; or
       2. (b) the commissioner releases the owner or operator from the requirements of this subdivision in accordance with paragraph (8) of this subdivision.

    10. (x) An owner or operator of a facility which is not a revenue-oriented facility may meet the requirements of this subdivision by obtaining a written guarantee, herein after referred to as "guarantee." If the firm which is providing the guarantee does not meet the definition of revenue-oriented in this section or section 373-3.8 of this Part, it may provide the guarantee on behalf of the owner or operator even if the owner or operator is a "revenue-oriented" facility. For a revenue-oriented facility, the financial statement of the owner or operator cannot be consolidated with the financial statement of the guarantor. 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 subparagraphs (i) through (viii) of this paragraph and must comply with the terms of the guarantee. The wording of the guarantee must be identical to the wording specified in paragraph (j)(6) of this section. A certified copy of the guarantee must accompany the items sent to the commissioner as specified in subparagraph (iii) of this paragraph. 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:

        1. (a) If the owner or operator fails to perform final closure of a facility covered by the guarantee in accordance with the closure plan and other permit requirements whenever required to do so, the guarantor will do so or make payment as the commissioner shall direct in writing.
        2. (b) The guarantee will remain in force unless the guarantor sends notice of cancellation by certified mail, return receipt requested, to the owner or operator and to the commissioner. 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 commissioner, as evidenced by the return receipts.
        3. (c) If the owner or operator fails to provide alternate financial assurance as specified in this subdivision and obtain the written approval of such alternate assurance from the commissioner within 90 days after receipt by both the owner or operator and the commissioner of a notice of cancellation of the guarantee from the guarantor, the guarantor will provide such alternative financial assurance in the name of the owner or operator.
24. (6) Use of multiple financial mechanisms. An owner or operator may satisfy the requirements of this subdivision by establishing more than one financial mechanism per facility. These mechanism are limited to trust funds, surety bonds, letters of credit, and insurance. The mechanisms must be as specified in paragraphs (1), (2), (3) and (4), respectively, of this subdivision, 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 closure cost estimate. If an owner or operator uses a trust fund in combination with a surety bond or a letter of credit, the trust fund may be used as the standby trust fund for the other mechanisms. A single standby trust fund, if required, may be established for two or more mechanisms. The commissioner may use any or all of the mechanisms to provide for closure of the facility.
25. (7) Use of a financial mechanism for multiple facilities. An owner or operator may use a financial assurance mechanism specified in this subdivision to meet the requirements of this subdivision for more than one facility. Evidence of financial assurance submitted to the commissioner must include a list showing, for each facility, the EPA identification number, name, address, and the amount of funds for closure assured by the mechanism. 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 closure of any of the facilities covered by the mechanism, the commissioner 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.

26. (8) Release of the owner or operator from the requirements of this subdivision. Within 60 days after receiving certifications from the owner or operator and in independent professional engineer registered in New York that final closure has been completed in accordance with the approved closure plan, the commissioner will notify the owner or operator in writing that the owner or operator is no longer required by this subdivision to maintain financial assurance for final closure of the facility, unless the commissioner has reason to believe that final closure has not been in accordance with the approved closure plan. The commissioner shall provide the owner or operator a detailed written statement of any reason to believe that closure has not been in accordance with the approved closure plan.

    (e) Cost estimate for post-closure care.

27. (1) The owner or operator of a disposal surface impoundment, disposal miscellaneous unit, land treatment unit, or landfill unit, or of a surface impoundment or waste pile, required under sections 373-2.11(f) and 373-2.12(h) of this Subpart to prepare a contingent closure and post- closure plan, must have a detailed written estimate, in current dollars, of the annual cost of post- closure monitoring and maintenance of the facility in accordance with the applicable post- closure regulations in sections 373-2.7(g)-(j), 373-2.11(f), 373-2.12(h), 373-2.13(h), 373-2.14(g) and 373-2.24(d) of this Subpart.

    1. (i) The post-closure cost estimate must be based on the costs to the owner or operator of hiring a third party to conduct post-closure care activities. A third party is a party who is neither a parent nor subsidiary of the owner or operator (see definition of parent corporation in subdivision [b] of this section).
    2. (ii) The post-closure cost estimate is calculated by multiplying the annual post-closure cost estimate by the number of years of post-closure care required under section 373-2.7(g) of this Subpart.

28. (2) During the active life of the facility, the owner or operator must adjust the post-closure cost estimate for inflation within 60 days prior to the anniversary date of the establishment of the financial instruments used to comply with section 373-2.8(f) of this Subpart. For owners or operators using the financial test or corporate guarantee, the post-closure cost estimate must be updated for inflation within 30 days after the close of the firm's fiscal year and before submission of updated information to the commissioner as specified in section 373-2.8(f)(5)(v) of this Subpart. The adjustment may be made by recalculating the post-closure cost estimate in current dollars, or by using an inflation factor derived from the most recent Implicit Price Deflator for Gross Domestic Product published by the U.S. Department of Commerce in its Survey of Current Business, as specified in subparagraphs (i) and (ii) of this paragraph. The inflation factor is the result of dividing the latest published annual deflator by the deflator for the previous year.

    1. (i) The first adjustment is made by multiplying the post-closure cost estimate by the inflation factor. The result is the adjusted post-closure cost estimate.
    2. (ii) Subsequent adjustments are made by multiplying the latest post-closure estimate by the latest inflation factor.
29. (3) During the active life of the facility, the owner or operator must revise the post-closure cost estimate no later than 30 days after the commissioner has approved the request to modify the post-closure plan, if the change in the post-closure plan increases the cost of post-closure care. The revised post-closure cost estimate must be adjusted for inflation as specified in paragraph (2) of this subdivision.
30. (4) The owner or operator must keep the following at the facility during the operating life of the facility: the latest post-closure cost estimate prepared in accordance with paragraphs (1) and (3) of this subdivision and, when this estimate has been adjusted in accordance with paragraph (2) of this subdivision, the latest adjusted post-closure cost estimate.

31. (f) Financial assurance for post-closure care. The owner or operator of a hazardous waste management unit subject to the requirements of subdivision (e) of this section must establish financial assurance for post-closure care in accordance with the approved post-closure plan for the facility 60 days prior to the initial receipt of hazardous waste or the effective date of regulation, whichever is later. The owner or operator must choose from the following options:

    1. (1) Post-closure trust fund.

       1. (i) An owner or operator may satisfy the requirements of this subdivision by establishing a post-closure trust fund which conforms to the requirements of this paragraph and submitting an originally signed duplicate of the trust agreement of the commissioner. An owner or operator of a new facility must submit the originally signed duplicate of the trust agreement to the commissioner at least 60 days before the date on which hazardous waste is first received for disposal. 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.
       2. (ii) The wording of the trust agreement must be identical to the wording specified in paragraph (j)(1) of this section, and the trust agreement must be accompanied by a formal certification of acknowledgement (for example, see paragraph [j][1]). Schedule A of the trust agreement must be updated within 60 days after a change in the amount of the current post- closure cost estimate covered by the agreement.

       3. (iii) Payments into the trust fund must be made annually by the owner or operator over the first five years of operation or over the remaining operating life of the facility as estimated in the closure plan, whichever period is shorter; this period is hereinafter referred to as the "pay-in-period." The payments into the post-closure trust fund must be made as follows:

          1. (a) For a new or revenue-oriented facility, the first payment must be equal to the total post-closure cost estimate, or an alternative mechanism must be provided which, when combined with the trust fund, provides financial assurance for an amount at least equal to the current closure cost estimate.

          2. (b) For a new facility, the first payment must be made before the initial receipt of hazardous waste. For a revenue-oriented facility, the first payment is due 90 days after the date that these regulations are promulgated. For existing facilities which are not revenue-oriented facilities, the first payment must be at least equal to the current post-closure cost estimate, except as provided in paragraph (6) of this subdivision, divided by the number of years in the pay-in period. Subsequent payments must be made no later than 30 days after each anniversary date of the first payment. The amount of each subsequent payment must be determined by this formula:

             Next payment = ^CE-CV/_Y

             where CE is the current post-closure cost estimate, CV is the current value of the trust fund, and Y is the number of years remaining in the pay-in period.

          3. (c) If an owner or operator establishes a trust fund as specified in this paragraph, and the value of that trust fund is less than the current post-closure cost estimate when a permit is awarded for the facility, the amount of the current pos-closure cost estimate still to be paid into the fund must be paid in over the pay-in period as defined in this subparagraph. Payments must continue to be made no later than 30 days after each anniversary date of the first payment made pursuant to this Subpart. The amount of each payment must be determined by this formula:

             Next payment =^CE-CV/_Y

             where CE is the current post-closure cost estimate, CV is the current value of the trust fund, and Y is the number of years remaining in the pay-in period.

       4. (iv) The owner or operator may accelerate payments into the trust fund or may deposit the full amount of the current post-closure cost estimate at the time the fund is established. However, the owner or operator must maintain the value of the fund at no less than the value that the fund would have if annual payments were made as specified in subparagraph (iii) of this paragraph.
       5. (v) If the owner or operator establishes a post-closure trust fund after having used one or more alternate mechanisms specified in this subdivision or in section 373-3.8(f) of this Part, the first payment must be in at least the amount that the fund would contain if the trust fund were established initially and annual payments made according to specifications of this paragraph and section 373-3.8(f)(1), as applicable.
       6. (vi) After the pay-in period is completed, whenever the current post-closure cost estimate changes during the operating life of the facility, the owner or operator must compare the new estimate with the trustee's most recent annual valuation of the trust fund. If the value of the fund is less than the amount of the new estimate, the owner or operator, within 60 days after the change in the cost estimate, must either deposit an amount into the fund so that its value after this deposit at least equals the amount of the current post-closure cost estimate, or obtain other financial assurance as specified in this subdivision to cover the difference.
       7. (vii) During the operating life of the facility, if the value of the trust fund is greater than the total amount of the current post-closure cost estimate, the owner or operator may submit a written request to the commissioner for release of the amount in excess of the current post- closure cost estimate.
       8. (viii) If an owner or operator substitutes other financial assurance as specified in this subdivision for all or part of the trust fund, the owner or operator may submit a written request to the commissioner for release of the amount in excess of the current post-closure cost estimate covered by the trust fund.
       9. (ix) Within 60 days after receiving a request from the owner or operator for release of funds as specified in subparagraph (vii) or (viii) of this paragraph, the commissioner will instruct the trustee to release to the owner or operator such funds as the commissioner specifies in writing.
       10. (x) During the period of post-closure care, the commissioner may approve a release of funds if the owner or operator demonstrates to the commissioner that the value of the trust fund exceeds the remaining cost of post-closure care.
       11. (xi) An owner or operator or another person authorized to conduct post-closure care may request reimbursements for post-closure care expenditures by submitting itemized bills to the commissioner. Within 60 days after receiving bills for post-closure care activities, the commissioner will instruct the trustee to make reimbursements in those amounts the commissioner specifies in writing, if the commissioner determines that the post-closure care expenditures are in accordance with the approved post-closure plan, or otherwise justified. If the commissioner does not instruct the trustee to make reimbursements, the commissioner will provide the owner or operator with a detailed written statement of reasons.

       12. (xii) The commissioner will agree to termination of the trust when:

           1. (a) an owner or operator substitutes alternate financial assurance as specified in this subdivision; or
           2. (b) the commissioner releases the owner or operator from the requirements of this subdivision in accordance with paragraph (8) of this subdivision.

    2. (2) Surety bond.

       1. (i) An owner or operator may satisfy the requirements of this subdivision by obtaining a surety bond which conforms to the requirements of this paragraph and submitting the bond to the commissioner. An owner or operator of a new facility must submit the bond to the commissioner at least 60 days before the date on which hazardous waste is first received for disposal. The bond must be effective before this initial receipt of hazardous waste. The surety company issuing the bond must, at a minimum, be among those listed as acceptable sureties on Federal bonds in Circular 570 of the U.S. Department of the Treasury.
       2. (ii) The wording of the surety bond must be identical to the wording specified in paragraph (j)(2) of this section.

       3. (iii) The owner or operator who uses a surety bond to satisfy the requirements of this subdivision must also establish a standby trust fund. Under the terms of the bond, all payments made thereunder will be deposited by the surety directly into the standby trust fund in accordance with instructions from the commissioner. This standby trust fund must meet the requirements specified in paragraph (1) of this subdivision, except that:

          1. (a) an originally signed duplicate of the trust agreement must be submitted to the commissioner with the surety bond; and

          2. (b) until the standby trust fund is funded pursuant to the requirements of this subdivision, the following are not required by these regulations:

             1. (1) payments into the trust fund as specified in paragraph (1) of this subdivision;
             2. (2) updating of Schedule A of the trust agreement (see paragraph [j][1] of this section) to show current post-closure cost-estimates;
             3. (3) annual valuations as required by the trust agreement; and
             4. (4) notices of nonpayment as required by the trust agreement.

       4. (iv) The bond must guarantee that the owner or operator will:

          1. (a) fund the standby trust fund in an amount equal to the penal sum of the bond before the beginning of final closure of the facility;
          2. (b) fund the standby trust fund in an amount equal to the penal sum within 15 days after an order to begin final closure is issued by the commissioner or a United States district court or other court of competent jurisdiction; or
          3. (c) provide alternate financial assurance as specified in this subdivision, and obtain the commissioner's written approval of the assurance provided, within 90 days after receipt by both the owner or operator and the commissioner of a notice of cancellation of the bond from the surety.
       5. (v) Under the terms of the bond, the surety will become liable on the bond obligation when the owner or operator fails to perform as guaranteed by the bond.
       6. (vi) The penal sum of the bond must be in an amount at least equal to the current post-closure cost estimate, except as provided in paragraph (6) of this subdivision.
       7. (vii) Whenever the current post-closure cost estimate increases to an amount greater than the penal sum, the owner or operator, within 60 days after the increase, must either cause the penal sum to be increased to an amount at least equal to the current post-closure cost estimate and submit evidence of such increase to the commissioner, or obtain other financial assurance as specified in this subdivision to cover the increase. Whenever the current post-closure cost estimate decreases, the penal sum may be reduced to the amount of the current post-closure cost estimate following written approval by the commissioner.
       8. (viii) Under the terms of the bond, the surety may cancel the bond by sending notice of cancellation, by certified mail, return receipt requested, to the owner or operator and to the commissioner. 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 commissioner, as evidenced by the return receipts.
       9. (ix) The owner or operator may cancel the bond if the commissioner has given prior written consent based on the receipt of evidence of alternate financial assurance as specified in this subdivision.

    3. (3) Post-closure letter of credit.

       1. (i) An owner or operator may satisfy the requirements of this subdivision by obtaining an irrevocable standby letter of credit which conforms to the requirements of this paragraph and submitting the letter to the commissioner. An owner or operator of a new facility must submit the letter of credit to the commissioner at least 60 days before the date on which hazardous waste is first received for disposal. The letter of credit must be effective before this initial receipt of hazardous waste. The issuing institution must be an entity which has the authority to issue letters of credit and whose letter of credit operations are regulated and examined by a Federal or State agency.
       2. (ii) The wording of the letter of credit must be identical to the wording specified in paragraph (j)(3) of this section.

       3. (iii) An owner or operator who uses a letter of credit to satisfy the requirements of this subdivision must also establish a standby trust fund. Under the terms of the letter of credit, all amounts paid pursuant to a draft by the commissioner will be deposited by the issuing institution directly into the standby trust fund in accordance with instructions from the commissioner. This standby trust fund must meet the requirements of the trust fund specified in paragraph (1) of this subdivision, except that:

          1. (a) an originally signed duplicate of the trust agreement must be submitted to the commissioner with the letter of credit; and

          2. (b) unless the standby trust fund is funded pursuant to the requirements of this subdivision, the following are not required by these regulations:

             1. (1) payments into the trust fund as specified in paragraph (1) of this subdivision;
             2. (2) updating of Schedule A of the trust agreement (see paragraph [j][1] of this section) to show current post-closure cost estimates;
             3. (3) annual valuations as required by the trust agreement; and
             4. (4) notices of nonpayment as required by the trust agreement.
       4. (iv) The letter of credit must be accompanied by a letter from the owner or operator referring to the letter of credit by number, issuing institution and date, and providing the following information: the EPA identification number, name and address of the facility, and the amount of funds assured for the post-closure care of the facility by the letter of credit.
       5. (v) The letter of credit must be irrevocable and issued for a period of at least one year. The letter of credit must provide that the expiration date will be automatically extended for a period of at least one year unless, at least 120 days before the current expiration date, the issuing institution notifies both the owner or operator and the commissioner, by certified mail, return receipt requested, of a decision not to extend the expiration date. Under the terms of the letter of credit, the 120 days will begin on the date when both the owner or operator and the commissioner have received the notice, as evidenced by the return receipts.
       6. (vi) The letter of credit must be issued in an amount at least equal to the current post-closure cost estimate, except as provided in paragraph (6) of this subdivision.
       7. (vii) Whenever the current post-closure cost estimate increases to an amount greater than the amount of the credit during the operating life of the facility, the owner or operator, within 60 days after the increase, must either cause the amount of the letter of credit to be increased so that it at least equals the current post-closure cost estimate, and submit evidence of such increase to the commissioner, or obtain other financial assurance as specified in this subdivision to cover the increase. Whenever the current post-closure cost estimate decreases during the operating life of the facility, the amount of the credit may be reduced to the amount of the current post-closure cost estimate following written approval by the commissioner.
       8. (viii) During the period of post-closure care, the commissioner may approve a decrease in the amount of the letter of credit if the owner or operator demonstrates to the commissioner that the amount exceeds the remaining cost of post-closure care.
       9. (ix) Following a determination, pursuant to section 373-2.7 of this Subpart, that the owner or operator has failed to perform post-closure care in accordance with the post-closure plan and other permit requirements, the commissioner may draw on the letter of credit.
       10. (x) If the owner or operator does not establish alternate financial assurance as specified in this subdivision, and obtain written approval of such alternate assurance from the commissioner within 90 days after receipt by both the owner or operator and the commissioner of a notice from the issuing institution that it has decided not to extend the letter of credit beyond the current expiration date, the commissioner will draw on the letter of credit. The commissioner may delay the drawings if the issuing institution grants an extension of the term of the credit. During the last 30 days of any such extension, the commissioner will draw on the letter of credit if the owner or operator has failed to provide alternate financial assurance as specified in this subdivision and obtain written approval of such assurance from the commissioner.

       11. (xi) The commissioner will return the letter of credit to the issuing institution for termination when:

           1. (a) an owner or operator substitutes alternate financial assurance as specified in this subdivision; or
           2. (b) the commissioner releases the owner or operator from the requirements of this subdivision in accordance with paragraph (8) of this subdivision.

    4. (4) Post-closure insurance.

       1. (i) An owner or operator may satisfy the requirements of this subdivision by obtaining post-closure insurance which conforms to the requirements of this paragraph and submitting a certificate of such insurance to the commissioner. An owner or operator of a new facility must submit the certificate of insurance to the commissioner at least 60 days before the date on which hazardous waste is first received for disposal. The insurance must be effective before this initial receipt of hazardous waste. At a minimum, the insurer must be authorized by the superintendent of the New York State Insurance Department to conduct the business of insurance, or eligible to provide insurance as an excess or surplus lines insurer, in New York State.
       2. (ii) The wording of the certificate of insurance must be identical to the wording specified in paragraph (j)(4) of this section.
       3. (iii) The post-closure insurance policy must be issued for a limit of liability at least equal to the current post-closure cost estimate, except as provided in paragraph (6) of this subdivision. The term limits of liability means the total amount the insurer is obligated to pay under the policy. Actual payments by the insurer will not change the limits if liability, although the insurer's future liability will be lowered by the amount of the payments.
       4. (iv) The post-closure insurance policy must guarantee that funds will be available to provide post-closure care of the facility whenever the post-closure period begins. This policy must also guarantee that once post-closure care begins, the insurer will be responsible for paying out funds, up to an amount equal to the limits of liability of the policy, upon the direction of the commissioner, to such party or parties as the commissioner specifies.
       5. (v) An owner or operator or any other person authorized to conduct post-closure care may request reimbursements for post-closure care expenditures by submitting itemized bills to the commissioner. Within 60 days after receiving bills for post-closure care activities, the commissioner will instruct the insurer to make reimbursements in such amounts as the commissioner specifies in writing, if the commissioner determines that the post-closure care expenditures are in accordance with the approved post-closure plan, or otherwise justified. If the commissioner does not instruct the insurer to make such reimbursements, the commissioner will provide the owner or operator with a detailed written statement of reasons.
       6. (vi) The owner or operator must maintain the policy in full force and effect until the commissioner consents to termination of the policy by the owner or operator as specified in subparagraph (xi) of this paragraph. Failure to pay the premium, without substitution of alternate financial assurance as specified in this subdivision, will constitute a significant violation of these regulations, warranting such remedy as the commissioner deems necessary. Such violation will be deemed to begin upon receipt by the commissioner 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. (vii) 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. (viii) 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 limits of liability 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, return receipt requested, to the owner or operator and the commissioner. 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 commissioner 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:

          1. (a) the commissioner deems the facility abandoned;
          2. (b) the permit is terminated or revoked or a new permit is denied;
          3. (c) closure is ordered by the commissioner or a United States district court or other court of competent jurisdiction;
          4. (d) the owner or operator is named as debtor in a voluntary or involuntary proceeding under 11 USCA (Bankruptcy); or
          5. (e) the premium due is paid.
       9. (ix) Whenever the current post-closure cost estimate increases to an amount greater than the limits of liability of the policy during the operating life of the facility, the owner or operator, within 60 days after the increase, must either cause the limits of liability to be increased to an amount at least equal to the current post-closure cost estimate and submit evidence of such increase to the commissioner, or obtain other financial assurance as specified in this subdivision to cover the increase. Whenever the current post-closure cost estimate decreases during the operating life of the facility, the limits of liability may be reduced to the amount of the current post-closure cost estimate following written approval by the commissioner.
       10. (x) Commencing on the date that liability to make payments pursuant to the policy accrues, the insurer will thereafter annually increase the limits of liability of the policy. Such increase must be equivalent to the limits of liability of the policy. less any payments made, multiplied by an amount equivalent to 85 percent of the most recent investment rate or of the equivalent coupon-issue yield announced by the United States Treasury for 26-week treasury securities.

       11. (xi) The commissioner will give written consent to the owner or operator that the insurance policy may be terminated when:

           1. (a) an owner or operator substitutes alternate financial assurance as specified in this subdivision; or
           2. (b) the commissioner releases the owner or operator from the requirements of this subdivision in accordance with paragraph (8) of this subdivision.

    5. (5) Financial test and guarantee for post-closure care.

       1. (i) An owner or operator of a facility which is not a revenue-oriented facility may satisfy the requirements of this subdivision by demonstrating that the owner or operator passes a financial test as specified in this paragraph. No revenue-oriented facilities will be allowed to use this financial assurance mechanism. To pass this test, the owner or operator must meet the criteria of either clause (a) or (b) of this subparagraph:

          1. (a) The owner or operator must have:

             1. (1) 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 the total liabilities greater than 0.1; and a ratio of current assets to current liabilities greater than 1.5;
             2. (2) net working capital and tangible net worth at least six times the sum of the current closure and post-closure cost estimates and the current plugging and abandonment cost estimates;
             3. (3) tangible net worth of at least $10 million; and
             4. (4) assets in the United States amounting to at least 90 percent of the total assets or at least six times the sum of the current closure and post-closure cost estimates and the current plugging and abandonment cost estimates.

          2. (b) The owner or operator must have:

             1. (1) a current rating for their 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;
             2. (2) tangible net worth at least six times the sum of the current closure and post-closure estimates and the current plugging and abandonment costs;
             3. (3) tangible net worth of at least $10 million; and
             4. (4) assets located in the United States amounting to at least 90 percent of the total assets or at least six times the sum of the current closure and post-closure cost estimates and the current plugging and abandonment costs.
       2. (ii) The phrases, "current closure and post-closure cost estimates" and "current plugging and abandonment cost estimates," as used in subparagraph (I) of this paragraph refer to the cost estimates required to be shown in paragraph 1-4 of the letter from the owner's or operator's chief financial officer.

       3. (iii) To demonstrate that he or she meets this test, the owner or operator must submit the following items to the commissioner:

          1. (a) a letter signed by the owner's or operator's chief financial officer and worded as specified in paragraph (j)(5) of this section;
          2. (b) 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

          3. (c) a special report from the owner's or operator's independent certified public accountant to the owner or operator, stating that:

             1. (1) the accountant has compared the data which the letter from the chief financial officer specifies as having been derived from the independently audited, year-end financial statements for the latest fiscal year with the amounts in such financial statements; and
             2. (2) in connection with that procedure, no matters came to the accountant's attention which caused the accountant to believe that the specified data should be adjusted.
       4. (iv) An owner or operator of a new facility must submit the items specified in subparagraph (iii) of this paragraph to the commissioner at least 60 days before the date on which hazardous waste is first received for disposal.
       5. (v) After the initial submission of items specified in subparagraph (iii) of this paragraph, the owner or operator must send updated information to the commissioner within 90 days after the close of each succeeding fiscal year. This information must consist of all three items specified in subparagraph (iii) of this paragraph.
       6. (vi) If the owner or operator no longer meets the requirements of subparagraph (I) of this paragraph, the owner or operator must send notice to the commissioner of intent to establish alternate financial assurance as specified in this subdivision. The notice must be sent by certified mail, return receipt requested, 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 meet the requirements. The owner or operator must provide the alternate financial assurance within 120 days after the end of such fiscal year.
       7. (vii) The commissioner may, based on a reasonable belief that the owner or operator may no longer meet the requirements of subparagraph (I) of this paragraph, require reports of financial condition at any time from the owner or operator in addition to those specified in subparagraph (iii) of this paragraph. If the commissioner finds, on the basis of such reports or other information, that the owner or operator no longer meets the requirements of subparagraph (I) of this paragraph, the owner or operator must provide alternate financial assurance as specified in this subdivision within 30 days after notification of such a finding.
       8. (viii) The commissioner may disallow use of this test on the basis of qualifications in the opinion expressed by the independent certified public accountant in his or her report on examination of the owner's or operator's financial statements (see clause [iii][b] of this paragraph). An adverse opinion or a disclaimer of opinion will be cause for disallowance. The commissioner will evaluate other qualifications on an individual basis. The owner or operator must provide alternate financial assurance as specified in this subdivision within 30 days after notification of the disallowance.
       9. (ix) During the period of post-closure care, the commissioner may approve a decrease in the current post-closure cost estimate for which this test demonstrates financial assurance if the owner or operator demonstrates to the commissioner that the amount of the cost exceeds the remaining cost of post-closure care.

       10. (x) The owner or operator is no longer required to submit the items specified in subparagraph (iii) of this paragraph when:

           1. (a) an owner or operator substitutes alternate financial assurance as specified in this subdivision; or
           2. (b) the commissioner releases the owner or operator from the requirements of this section in accordance with paragraph (8) of this subdivision.

       11. (xi) An owner or operator of a facility which is not a revenue-oriented facility may meet the requirements of this subdivision by obtaining a written guarantee, hereinafter referred to as "guarantee." If the firm which is providing the guarantee does not meet the definition of revenue-oriented in this section or section 373-3.8 of this Part, it may provide the guarantee on behalf of the owner or operator even if the owner or operator is a revenue-oriented facility. For a revene-oriented facility, the financial statement of the owner or operator cannot be consolidated with the financial statement of the guarantor. 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 subparagraphs (i) through (ix) of this paragraph and must comply with the terms of the guarantee. The wording of the guarantee must be identical to the wording specified in paragraph (j)(6) of this section. A certified copy of the guarantee must accompany the items sent to the commissioner as specified in subparagraph (iii) of this paragraph. 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:

           1. (a) If the owner or operator fails to perform post-closure care of a facility covered by the guarantee in accordance with the post-closure plan and other permit requirements whenever required to do so, the guarantor will do so or make payment as the commissioner shall direct, in writing.
           2. (b) The guarantee will remain in force unless the guarantor sends notice of cancellation by certified mail, return receipt requested, to the owner or operator and to the commissioner. 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 commissioner, as evidenced by the return receipts.
           3. (c) If the owner or operator fails to provide alternate financial assurance as specified in this subdivision and obtain the written approval of such alternate assurance from the commissioner within 90 days after receipt by both the owner or operator and the commissioner of a notice of cancellation of the guarantee from the guarantor, the guarantor will provide such financial assurance in the name of the owner or operator.
    6. (6) Use of multiple financial mechanisms. An owner or operator may satisfy the requirements of this subdivision 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 (1), (2), (3), and (4), respectively, of this subdivision, 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 post-closure cost estimate. If an owner or operator uses a trust fund in combination with a surety bond or a letter of credit, the trust fund may be used as the standby trust fund for the other mechanisms. A single standby trust fund, if required, may be established for two or more mechanisms. The commissioner may use any or all of the mechanisms to provide for post-closure care of the facility.
    7. (7) Use of a financial mechanism for multiple facilities. An owner or operator may use a financial assurance mechanism specified in this subdivision to meet the requirements of this subdivision for more than one facility. Evidence of financial assurance submitted to the commissioner must include a list showing, for each facility, the EPA identification number, name, address and the amount of funds for post-closure care assured by the mechanism. 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 post-closure care of any of the facilities covered by the mechanism, the commissioner 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.

    8. (8) Release of the owner or operator from the requirements of this subdivision. Within 60 days after receiving certifications from the owner or operator and an independent professional engineer registered in New York that the post-closure care period has been completed for a hazardous waste disposal unit in accordance with the approved post-closure plan, the commissioner will notify the owner or operator in writing that the owner or operator is no longer required by this subdivision to maintain financial assurance for post-closure care of the unit unless the commissioner has reason to believe that post-closure care has not been in accordance with the approved post-closure plan. The commissioner shall provide the owner or operator of a detailed written statement of any such reason to believe that post-closure care has not been in accordance with the approved post-closure plan.

       (g) Use of a mechanism for financial assurance of both closure and post-closure care.

       An owner or operator may satisfy the requirements for financial assurance for both closure and post- closure care for one or more facilities by using a trust fund, surety bond, letter of credit, insurance, financial test, or corporate guarantee that meets the specifications for the mechanism in both subdivisions (d) and (f) of this section. 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 financial assurance of closure and post-closure care.

       (h) Liability requirements.

    9. (1) Coverage for sudden accidental occurrences. An owner or operator of a hazardous waste treatment, storage or disposal facility, 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 subparagraphs (i), (ii), (iii), (iv), (v) and (vi) of this paragraph.

       1. (i) An owner or operator may demonstrate the required liability coverage by having liability insurance as specified in this subparagraph.

          1. (a) Each insurance policy must be amended by attachment of the Hazardous Waste Facility Liability Endorsement or evidenced by a Certificate of Liability Insurance. The wording of the endorsement must be identical to the wording specified in paragraph (j)(7) of this section. The wording of the certificate of insurance must be identical to the wording specified in paragraph (j)(8). The owner or operator must submit a signed duplicate original of the endorsement or certificate of insurance to the commissioner. If requested by the commissioner, the owner or operator must provide a signed duplicate original of the insurance policy. An owner or operator of a new facility must submit the signed duplicate original of the Hazardous Waste Facility Liability Endorsement or the Certificate of Liability Insurance to the commissioner at least 60 days before the date on which hazardous waste is first received for treatment, storage or disposal. The insurance must be effective before this initial receipt of hazardous waste.
          2. (b) 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 within New York State, by the Superintendent of the New York State Department of Financial Services.
       2. (ii) An owner or operator of a facility which is not a revenue-oriented facility may meet the requirements of this paragraph by passing a financial test or using the guarantee for liability coverage as specified in paragraphs (6) and (7) of this subdivision. If the firm which is providing the guarantee does not meet the definition of revenue-oriented in this section or section 373-3.8 of this Part, it may provide the guarantee on behalf of the owner or operator even if the owner of operator is a revenue-oriented facility. For a revenue-oriented facility, the financial statement of the owner or operator cannot be consolidated with the financial statement of the guarantor.
       3. (iii) An owner or operator may meet the requirements of this paragraph by obtaining a letter of credit for liability coverage as specified in paragraph (8) of this subdivision.
       4. (iv) An owner or operator may meet the requirements of this paragraph by obtaining a surety bond for liability coverage as specified in paragraph (9) of this subdivision.
       5. (v) An owner or operator may meet the requirements of this paragraph by obtaining a trust fund for liability coverage as specified in paragraph (10) of this subdivision.
       6. (vi) An owner or operator may demonstrate the required liability coverage through 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 paragraph. If the owner of 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 assurances as "excess" coverage. An owner or operator of a revenue-oriented facility may use all of the above- mentioned financial mechanisms except the financial test and/or guarantee.

       7. (vii) An owner or operator shall notify the commissioner in writing within 30 days whenever:

          1. (a) a claim results in a reduction in the amount of financial assurance for liability coverage provided by a financial instrument authorized in subparagraphs (1)(i) through (vi) of this subdivision;
          2. (b) a certification of valid claim for bodily injury or property damages caused by a sudden or nonsudden accidental occurrence arising from the operation of a hazardous waste treatment, storage, or disposal facility is entered between the owner of operator and a third-party-claimant for liability coverage under subparagraphs (1)(i) through (vi) of this subdivision; or
          3. (c) a final court order establishing a judgment for bodily injury or property damage caused by a sudden or nonsuden accidental occurrence arising from the operation of a hazardous waste treatment, storage or disposal facility is issued against the owner or operator or an instrument that is providing financial assurance for liability coverage under subparagraphs (1)(i) through (vi) of this subdivision.

    10. (2) Coverage for nonsudden accidental occurrences. An owner or operator of a surface impoundment, landfill, land treatment facility, or disposal miscellaneous unit that is used to manage hazardous waste, 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 $4.5 million per occurrence, with an annual aggregate of at least $9 million, exclusive of legal defense costs, for each separate facility in New York State. An owner of operator who must meet the requirements of this paragraph 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 $5.5 million per occurrence and $11 million annual aggregate. This liability coverage may be demonstrated as specified in subparagraph (i), (ii), (iii), (iv), (v) or (vi) of this paragraph:

        1. (i) An owner or operator may demonstrate the required liability coverage by having liability insurance as specified in this subparagraph.

           1. (a) Each insurance policy must be amended by attachment of the Hazardous Waste Facility Liability Endorsement or evidenced by a Certificate of Liability Insurance. The wording of the endorsement must be identical to the wording specified in paragraph (j)(7) of this section. The wording of the certificate of insurance must be identical to the wording specified in paragraph (j)(8). The owner or operator must submit a signed duplicate original of the endorsement or the certificate of insurance to the commissioner. If requested by the commissioner, the owner or operator must provide a signed duplicate original of the insurance policy. An owner or operator of a new facility must submit the signed duplicate original of the Hazardous Waste Facility Liability Endorsement or the Certificate of Liability Insurance to the commissioner at least 60 days before the date on which hazardous waste is first received for treatment, storage or disposal. The insurance must be effective before this initial receipt of hazardous waste.
           2. (b) Each insurance policy must be issued by an insurer which, at a minimum, is licensed to transact the business of insurance, or authorized to provide insurance as an excess or surplus lines insurer, within New York State, by superintendent of the New York State Insurance Department.
        2. (ii) An owner or operator of a facility which is not a revenue-oriented facility may meet the requirements of this paragraph by passing a financial test or using the guarantee for liability coverage as specified in paragraphs (6) and (7) of this subdivision. If the firm which is providing the guarantee does not meet the definition of revenue-oriented in this section or section 373-3.8 of this Part, it may provide the guarantee on behalf of the owner or operator even if the owner or operator is a revenue-oriented facility. For a revenue-oriented facility, the financial statement of the owner or operator cannot be consolidated with the financial statement of the guarantor.
        3. (iii) An owner or operator may meet the requirements of this paragraph by obtaining a letter of credit for liability coverage as specified in paragraph (8) of this subdivision.
        4. (iv) An owner or operator may meet the requirements of this paragraph by obtaining a surety bond for liability coverage as specified in paragraph (9) of this subdivision.
        5. (v) An owner or operator may meet the requirements of this paragraph by obtaining a trust fund for liability coverage as specified in paragraph (10) of this subdivision.
        6. (vi) 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 amount required by this paragraph. 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 assurances as "excess" coverage. An owner or operator of a revenue-oriented facility may use all of the above-mentioned financial mechanisms except the financial test and/or guarantee.

        7. (vii) An owner or operator shall notify the commissioner in writing within 30 days whenever:

           1. (a) a claim results in a reduction in the amount of financial assurance for liability coverage provided by a financial instrument authorized in subparagraphs (2)(i) through (vi) of this subdivision;
           2. (b) a certification of valid claim for bodily injury or property damages caused by a sudden or nonsudden accidental occurrence arising from the operation of a hazardous waste treatment, storage, or disposal facility is entered between the owner or operator and third-party claimant for liability coverage under subparagraphs (2)(i) through (vi) of this subdivision; or
           3. (c) a final court order establishing a judgment for bodily injury or property damage caused by a sudden or nonsudden accidental occurrence arising from the operation of a hazardous waste treatment, storage, or disposal facility is issued against the owner or operator or an instrument that is providing financial assurance for liability coverage under subparagraphs (2)(i) through (vi) of this subdivision.
    11. (3) Request for variance. If an owner or operator can demonstrate to the satisfaction of the commissioner that the levels of financial responsibility required by paragraph (1) or (2) of this subdivision are not consistent with the degree and duration of risk associated with treatment, storage or disposal at the facility or group of facilities, the owner or operator may obtain a variance from the commissioner. The request for a variance must be submitted to the commissioner as part of the application under section 373-1.5(a) of this Part for a facility that does not have a permit, or pursuant to the procedures for permit modification under section 373-1.7 for a facility that has a permit. If granted, the variance will take the form of an adjusted level of required liability coverage, such level to be based on the commissioner's assessment of the degree and duration of risk associated with ownership or operation of the facility or group of facilities. The commissioner may require an owner or operator who requests a variance to provide such technical and engineering information as is deemed necessary by the commissioner to determine a level of financial responsibility other than that required by paragraph (1) or (2) of this subdivision. Any request for a variance for a permitted facility will be treated as a request for a permit modification under section 373-1.7.
    12. (4) Adjustments by the commissioner. If the commissioner determines that the levels of financial responsibility required by paragraph (1) or (2) of this subdivision are not consistent with the degree and duration of risk associated with treatment, storage or disposal at the facility or group of facilities, the commissioner may adjust the level of financial responsibility required under paragraph (1) or (2) of this subdivision as may be necessary to protect human health and the environment. This adjusted level will be based on the commissioner'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 commissioner 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, landfill or land treatment facility, the commissioner may require that an owner or operator of the facility comply with paragraph (2) of this subdivision. An owner or operator must furnish to the commissioner, within a reasonable time, any information which the commissioner requests to determine whether cause exists for such adjustments of level or type of coverage. Any adjustment of the level or type of coverage for a facility that has a permit will be treated as a permit modification under section 373-1.7 of this Part.
    13. (5) Period of coverage. Within 60 days after receiving certifications from the owner or operator and an independent professional engineer registered in New York that final closure has been completed in accordance with the approved closure plan, the commissioner will notify the owner or operator in writing that the owner or operator is no longer required by this subdivision to maintain liability coverage for that facility, unless the commissioner has reason to believe that closure has not been in accordance with the approved closure plan.

    14. (6) Financial test for liability coverage. An owner or operator of a facility which is not a revenue-oriented facility may satisfy the requirements of this subdivision by demonstrating that the owner or operator passes a financial test as specified in this paragraph. To pass this test, the owner or operator must meet the criteria of subparagraph (I) or (ii) of this paragraph.

        1. (i) The owner or operator must have:

           1. (a) net working capital and tangible net worth each at least six times the amount of liability coverage to be demonstrated by this test;
           2. (b) tangible net worth of at least $10 million; and

           3. (c) assets in the United States amounting to either:

              1. (1) at least 90 percent of the total assets; or
              2. (2) at least six times the amount of liability coverage to be demonstrated by this test.

        2. (ii) The owner or operator must have:

           1. (a) a current rating for their most recent bond issuance of AAA, AA, A or BBB as issued by Standard and Poor's, or Aaa, Aa or Baa as issued by Moody's;
           2. (b) tangible net worth of at least $10 million;
           3. (c) tangible net worth at least six times the amount of liability coverage to be demonstrated by this test; and

           4. (d) assets in the United States amounting to either:

              1. (1) at least 90 percent of his total assets; or
              2. (2) tangible net worth of at least $10 million; and
              3. (3) tangible net worth at least six times the amount of liability coverage to be demonstrated by this test.
        3. (iii) The phrase "amount of liability coverage" as used in this paragraph refers to the annual aggregate amounts for which coverage is required under paragraphs (1) and (2) of this subdivision.

        4. (iv) To demonstrate that he or she meets this test, the owner or operator must submit the following three items to the commissioner:

           1. (a) a letter signed by the owner's or operator's chief financial officer and worded as specified in paragraph (j)(9) of this section. If an owner or operator is using the financial test to demonstrate both assurance for closure or post-closure care, as specified by paragraphs (d)(5) and (f)(5) of this section and paragraphs (d)(5) and (f)(5) of section 373-3.8 of this Part, and liability coverage, the letter specified in paragraph (j)(9) of this section must be submitted to cover both forms of financial responsibility; a separate letter as specified in paragraph (j)(5) of this section is not required;
           2. (b) 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

           3. (c) a special report from the owner's or operator's independent certified public accountant to the owner or operator, stating that:

              1. (1) the accountant has compared the data which the letter from the chief financial officer specifies as having been derived from the independently audited, year-end financial statements for the latest fiscal year with the amounts in such financial statements; and
              2. (2) in connection with that procedure, no matters came to the accountant's attention which caused the accountant to believe that the specified data should be adjusted.
        5. (v) An owner or operator of a new facility which is not a revenue-oriented facility must submit the items specified in subparagraph (iv) of this paragraph to the commissioner at least 60 days before the date on which hazardous waste is first received for treatment, storage or disposal.
        6. (vi) After the initial submission of items in subparagraph (iv) of this paragraph, the owner or operator must send updated information to the commissioner within 90 days after the close of each succeeding fiscal year. This information must consist of all three items specified in subparagraph (iv) of this paragraph.
        7. (vii) If the owner or operator no longer meets the requirements of subparagraph (I) of this paragraph, the owner or operator 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 subdivision. Evidence of liability coverage must be submitted to the commissioner 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.
        8. (viii) The commissioner may disallow use of this test on the basis of qualifications in the opinion expressed by the independent certified public accountant in his or her report on examination of the owner's or operator's financial statements (see clause [iv][b] of this paragraph). An adverse opinion or a disclaimer of opinion will be cause for disallowance. The commissioner will evaluate other qualifications on an individual basis. The owner or operator must provide alternate financial assurance as specified in this subdivision within 30 days after notification of the disallowance.

    15. (7) Guarantee for liability coverage.

        1. (i) An owner or operator may meet the requirements of this subdivision by obtaining a written guarantee, herein after 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 paragraph (6) of this subdivision. The wording of the guarantee must be identical to the wording specified in subparagraph (j)(6)(ii) of this section. A certified copy of the guarantee must accompany the items sent to the commissioner as specified in subparagraph (6)(iv) of this subdivision. 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 this guarantee. The terms of the guarantee must provide that:

           1. (a) 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 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; and
           2. (b) the guarantee will remain in force unless the guarantor sends notice of cancellation by "certified mail, return receipt requested" to the owner or operator and to the commissioner. This guarantee may not be terminated unless and until the commissioner approves alternate liability coverage complying with this subdivision.

    16. (8) Letter of credit for liability coverage.

        1. (i) An owner or operator may satisfy the requirements of this subdivision 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 commissioner.
        2. (ii) 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.
        3. (iii) The wording of the letter of credit must be identical to the wording specified in paragraph (j)(10) of this section.
        4. (iv) An owner or operator who uses a letter of credit to satisfy the requirements of this subdivision 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. (v) The wording of the standby trust fund agreement must be identical to the wording specified in paragraph (j)(13) of this section.

    17. (9) Surety bond for liability coverage.

        1. (i) An owner or operator may satisfy the requirements of this subdivision by obtaining a surety bond that conforms to the requirements of this paragraph and submitting a copy of the bond to the commissioner.
        2. (ii) 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. (iii) The wording of the surety bond must be identical to the wording specified in paragraph (j)(11) of this section.
        4. (iv) A surety bond may be used to satisfy the requirements of this subdivision only if the Attorneys General or Insurance Commissioners of (a) the State in which the surety is incorporated; and (b) each State in which a facility covered by the surety bond is located have submitted a written statement to the Commissioner that a surety bond executed as described in this subdivision and paragraph (j)(11) of this section is a legally valid and enforceable obligation in that State.

    18. (10) Trust fund for liability coverage.

        1. (i) An owner or operator may satisfy the requirements of this subdivision 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 commissioner.
        2. (ii) 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. (iii) 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 subdivision. 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 subdivision to cover the difference. For purposes of this paragraph, the full amount of 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 subdivision, 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. (iv) The wording of the trust fund must be identical to the wording specified in paragraph (j)(12) of this section.

           (i) Incapacity of owners or operators, guarantors or financial institutions.

    19. (1) An owner or operator must notify the commissioner by certified mail, return receipt requested, of the commencement of a voluntary or involuntary proceeding under 11 USCA (Bankruptcy), naming the owner or operator as debtor, within 10 days after commencement of the proceeding. A guarantor of a guarantee as specified in paragraphs (d)(5) and (f)(5) of this section must make such a notification if the guarantor is named as debtor, as required under the terms of the guarantee (see paragraph [j][6] of this section).

    20. (2) An owner or operator who fulfills the requirements of subdivision (d), (f) or (h) of this section 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.

        (j) Wording of the instruments. (Send to: NYSDEC, 625 Broadway, Albany, NY 12233-1011)

    21. (1) A trust agreement for a trust fund, as specified in paragraph (d)(1) or (f)(1) of this section, or paragraph (d)(1) or (f)(1) of section 373-3.8 of this Part, 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 [enter date] by and between [name of the owner or operator], a [name of State] [insert “corporation,” “partnership,” “association” or “proprietorship”], the “Settlor,” and [name of a corporate trustee], [insert “incorporated in the State of __” or “a national bank”], the “Trustee.”

        WHEREAS, the New York State Department of Environmental Conservation (hereinafter referred to as “NYSDEC”) has established certain regulations applicable to the Settlor, requiring that an owner or operator of a hazardous waste management facility shall provide financial assurance that funds will be available when needed [insert “for facility closure, and post-closure facility monitoring and maintenance,” or other language upon written approval of the Commissioner of NYSDEC which limits or reduces the extent of the activities funded by this trust] (hereinafter referred to as “Closure and Post-Closure”), and

        WHEREAS, the Settlor has elected to establish a trust to provide all or part of such financial assurance for the facilities identified herein, and

        WHEREAS, the Settlor 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 Settlor and the Trustee agree as follows:

        Section 1. Definitions. As used in this Agreement:

    22. (a) The term “Settlor” means the owner or operator who enters into this Agreement and any successors or assigns of the Settlor.
    23. (b) The term “Trustee” means the Trustee who enters into this Agreement and any successor Trustee.

    24. (c) The term “Commissioner” means the Commissioner of the New York State Department of Environmental Conservation, or the commissioner's duly appointed designee.

        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 NYSDEC and EPA identification numbers, names, addresses, and the costs, as established or approved by the Commissioner, per facility for Closure and Post-Closure, or portions thereof, for which financial assurance is demonstrated by this Agreement].

        Section 3. Establishment of Fund. The Settlor and the Trustee hereby establish a trust fund (hereinafter referred to as the “Fund”) for the benefit of NYSDEC. The Settlor 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 annexed 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 Settlor, any payments necessary to discharge any liabilities of the Settlor established by NYSDEC.

        Section 4. Payment for Closure, Post-Closure.The Trustee shall make payment from the Fund as the Commissioner shall direct, in writing, to provide for the payment of the costs of Closure and Post-Closure of the facilities covered by this Agreement. The Trustee shall reimburse the Settlor or other persons as specified by the Commissioner from the Fund for the expenditures of such covered activities in such amounts as the Commissioner shall direct in writing. In addition, the Trustee shall refund to the Settlors such amounts as the Commissioner 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 Settlor 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 or her 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:

    25. (a) Securities or other obligations of the Settlor, or any other owner or operator of the facilities, or any of their affiliates as defined in the Investment Company Act of 1940, 15 USCA 80a-2(a) (see section 370.1[e]), shall not be acquired or held, unless they are securities or other obligations of the Federal or a State government;
    26. (b) The Trustee is authorized to invest the Fund in time or demand deposits of the Trustee, to the extent insured by an agency of the Federal or State government; and

    27. (c) The Trustee is authorized to hold cash awaiting investment or distribution uninvested for a reasonable time and without liability for the payment of interest thereon.

        Section 7. Commingling and Investment. The Trustee is expressly authorized in its discretion:

    28. (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

    29. (b) To purchase shares in any investment company registered under the Investment Company Act of 1940, 15 USCA 80a-1et seq. (see 6 NYCRR 370.1[e]), 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:

    30. (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;
    31. (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;
    32. (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;
    33. (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;
    34. (e) To accept additions to the Fund from sources other than the Settlor of the Trust; and

    35. (f) To contest, compromise, or otherwise settle any claim in favor of the Fund or Trustee, or in favor of third persons and against the Fund or Trustee.

        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 Settlor, 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 Settlor and to the Commissioner, 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 the establishment of the Fund. The failure of the Settlor to object in writing to the Trustee within 90 days after the statement has been furnished to the Settlor and to the Commissioner shall constitute a conclusively binding assent by the Settlor, barring the Settlor 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 Settlor, 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 Settlor.

        Section 13. Successor Trustee. The Trustee may resign or the Settlor may replace the Trustee, but such resignation or replacement shall not be effective until the Settlor 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 Settlor 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 instruction. The successor trustee shall specify the date on which it assumes administration of the trust in a writing sent to the Settlor, the Commissioner, and the present Trustee by certified mail, return receipt requested, 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 Settlor 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 Settlor may designate by amendment to Exhibit A. The Trustee shall be fully protected in acting without inquiry in accordance with the Settlor's orders, requests and instructions. All orders, requests and instructions by the Commissioner to the Trustee shall be in writing, signed by the Commissioner, 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 Settlor or NYSDEC hereunder has occurred. The Trustee shall have no duty to act in the absence of such orders, requests and instructions from the Settlor and/or NYSDEC except as provided for herein.

        Section 15. Notice of Nonpayment. The Trustee shall notify the Settlor and the Commissioner, by certified mail, return receipt requested, within 10 days following the expiration of the 30-day period after the anniversary of the establishment of the Trust, if no payment is received from the Settlor during that period. After the pay-in period is completed, the Trustee shall not be required to send a notice of nonpayment.

        Section 16. Amendment of Agreement. This Agreement may be amended by an instrument in writing executed by the Settlor, the Trustee and the Commissioner, or by the Trustee and the Commissioner if the Settlor 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 Settlor, the Trustee and the Commissioner, or by the Trustee and the Commissioner if the Settlor ceases to exist. Upon termination of the Trust, all remaining trust property, less final trust administration expenses, shall be delivered to the Settlor.

        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 the carrying out of any directions by the Settlor or the Commissioner issued in accordance with this Agreement. The Trustee shall be indemnified and saved harmless by the Settlor 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 Settlor 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 New York.

        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 6 NYCRR 373-2.8(j)(1) as such regulations were constituted on the date first above written.

        Settlor

        Trustee

        (ACKNOWLEDGMENT BY TRUSTEE, IF A BANK)

        STATE OF :

        : SS.:

        COUNTY OF :

        On this day of , , before me personally came , to me known, who, by me duly sworn, did depose and say that (s)he resides in ; that (s)he is the of , the banking institution described in and which executed the within Trust Fund Agreement; and that (s)he signed his/her name thereto by authority of such banking institution.

        Notary Public

        (ACKNOWLEDGMENT BY TRUSTEE, IF A CORPORATION)

        STATE OF :

        : SS.:

        COUNTY OF :

        On this day of , , before me personally came , to me known, who, by me duly sworn, did depose and say that (s)he resides in ; that (s)he is the of , the corporation described in and which executed the within Trust Agreement; that (s)he knew the seal of said corporation; that the seal affixed to said instrument was such corporate seal; that it was so affixed by order of the board of directors of said corporation, and that (s)he signed his/her name thereto by like order.

        Notary Public

        (ACKNOWLEDGMENT BY SETTLOR/OWNER OPERATOR, UNLESS IT BE A CORPORATION)

        STATE OF :

        : SS.:

        COUNTY OF :

        On this day of , , before me personally came , to me known and known to me to be the person(s) described in and who executed the within Trust Fund Agreement and acknowledged that (s)he executed the same.

        Notary Public

        (ACKNOWLEDGMENT BY SETTLOR/OWNER OPERATOR, IF A CORPORATION)

        STATE OF :

        : SS.:

        COUNTY OF :

        On this day of , , before me personally came , to me known, who, by me duly sworn, did depose and say that (s)he resides in ; that (s)he is the of , the corporation described in and which executed the within Trust Agreement; that (s)he knew the seal of said corporation; that the seal affixed to said instrument was such corporate seal; that it was so affixed by order of the board of directors of said corporation, and that (s)he signed his/her name thereto by like order.

        Notary Public

    36. (2) A surety bond, as specified in paragraph (d)(2) or (f)(2) of this section, or paragraph (d)(2) or (f)(2) of section 373-3.8 of this Part, must be worded as follows, except that instructions in brackets are to be replaced with the relevant information and the brackets deleted:

        SURETY BOND

        Bond Number:

        Date bond executed: [If more than one Surety, identify bond number with respective surety]

        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) of Surety(ies)]

        Obligee: New York State Department of Environmental Conservation

        EPA identification numbers, name, address, and closure and/or post-closure amount(s) for each facility guaranteed by this bond [indicate facility and closure and/or post-closure amounts separately]:

        _________

        _________

        _________

        Total penal sum of bond: $__ (payable in good and lawful money of the United States of America)

        NOW, THEREFORE, know All Persons By These Presents, that we, the Principal and Surety(ies) hereto are held and firmly bound to NYSDEC 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 ECL art. 27, to have a permit or interim status in order to own or operate each hazardous waste management facility identified above; and

        WHEREAS said principal is required to provide financial assurance for closure, or closure and post-closure care, as referred to above, as a condition of the permit(s) or interim status; and

        WHEREAS said Principal shall establish a standby trust fund as is required when a surety bond is used to provide such financial assurance;

        NOW, THEREFORE, the conditions of the obligation are such that if the Principal shall faithfully, before the beginning of final closure of each facility identified above, fund the standby trust fund in the amount(s) identified above for the facility.

        OR, if the Principal shall fund the standby trust fund in such amounts(s) within 15 days after an order to begin closure is issued by the Commissioner or a United States district court or other court of competent jurisdiction.

        OR, if the Principal shall provide alternate financial assurance, as specified in ECL section 27-0917 or 6 NYCRR section 373-2.8 or 373-3.8, as applicable, and obtain the Commissioner's written approval of such assurance, within 90 days after the date notice of cancellation is received by both the Principal and the Commissioner 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 set forth above. Upon notification by the Commissioner 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 Commissioner.

        The liability of the Surety(ies) shall not be discharged by any payment or succession of payments hereunder, unless and until such payment 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, return receipt requested, to the Principal and the Commissioner, 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 Commissioner, 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 Commissioner.

        [The following paragraph is an optional rider that may be included, but is not required.]

        Principal and Surety(ies) hereby agree to adjust the penal sum of the bond yearly so that it guarantees a new closure and/or post-closure 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 Commissioner.

        IN WITNESS WHEREOF, the Principal and Surety(ies) 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 6 NYCRR 373-2.8(j)(2), 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: (For each facility, and in the aggregate)

        $____

        [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: $____

        (ACKNOWLEDGEMENT BY PRINCIPAL, UNLESS IT BE A CORPORATION)

        STATE OF :

        : SS.:

        COUNTY OF :

        On this day of , , before me personally came , to me known and known to me to be the person(s) described in and who executed the foregoing instrument and acknowledged that (s)he executed the same.

        Notary Public

        (ACKNOWLEDGEMENT BY PRINCIPAL, IF A CORPORATION)

        STATE OF :

        : SS.:

        COUNTY OF :

        On this day of , , before me personally came , to me known, who, being by me duly sworn, did depose and say that (s)he resides in ; that (s)he is the of , the corporation described in and which executed the within instrument; that (s)he knows the seal of said corporation; that the seal affixed to said instrument was such corporate seal; that it was so affixed by order of the board of directors of said corporation, and that (s)he signed his/her name thereto by like order.

        Notary Public

        (ACKNOWLEDGEMENT BY SURETY COMPANY; PREPARE SEPARATE ACKNOWLEDGEMENT FOR EACH SURETY)

        STATE OF :

        : SS.:

        COUNTY OF :

        On this day of , , before me personally came , to me known, who, being duly sworn, did depose sand say that (s)he resides in ; that (s)he is the of [insert name of Surety], the corporation described in and which executed the within instrument; that (s)he knows the seal of said corporation; that the seal affixed to said instrument is such corporate seal; that it was so affixed by order of the Board of Directors of said corporation, and that (s)he signed his/her name thereto by like order; and that the liabilities of said company do not exceed its assets as ascertained in the manner provided by the laws of the State of New York.

        Notary Public

    37. (3) A letter of credit, as specified in paragraph (d)(3) or (f)(3) of this section, or paragraph (d)(3) or (f)(3) of section 373-3.8 of this Part, 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 banking establishment [ Date]

        Commissioner

        New York State Department of Environmental Conservation

        625 Broadway

        Albany, NY 12233-1011

        Re: Letter of Credit No. __

        Dear Sir or Madam:

        We hereby establish and open our Irrevocable Standby Letter of Credit No. __ in your favor, at the request and for the account of [owner's or operator's name and address], up to the aggregate amount of [insert amount of dollars in words] U.S. dollars ($ __), available upon presentation of:

    38. (1) your sight draft, bearing reference to this Letter of Credit No. __, and

    39. (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 New York State Environmental Conservation Law.”

        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 thereafter, unless at least 120 days before the current expiration date, we notify both you and [owner's or operator's name] by certified mail, return receipt requested, 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 and the above-referred-to signed statement 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.

        The [insert name of bank issuing letter of credit] agrees that whenever this letter of credit is drawn on, under and in compliance with the terms of this letter of credit, that [insert name of bank issuing letter of credit] shall duly honor such draft upon presentation to [insert name of bank issuing letter of credit] and the [insert name of bank issuing letter of credit] shall deposit the amount of the draft into the standby trust fund of [owner's or operator's name] in accordance with the Commissioner's instructions.

        We certify that the wording of this letter of credit is identical to the wording specified in 6 NYCRR 373-2.8(j)(3), as such regulations were constituted on the date shown immediately below.

        Very truly yours,

        [insert name of bank issuing credit]

        By:

        [insert name and title of authorized employee or officer of bank issuing letter of credit.]

        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 of the State of New York”).

    40. (4) A certificate of insurance, as specified in paragraph (d)(4) or (f)(4) of this section, or (d)(4) or (f)(4) of section 373-3.8 of this Part, must be worded as follows, except that instructions in brackets are to be replaced with relevant information and the brackets deleted:

        CERTIFICATE OF INSURANCE FOR CLOSURE AND/OR POST-CLOSURE CARE

        Name and Address of Insurer

        (hereinafter called the “Insurer”):

        Name and Address of Insured

        (hereinafter called the “Insured”):

        Facilities Covered: [List for each facility: EPA identification Numbers, names, addresses, and the amount of insurance for facility closure, and for post-closure monitoring and maintenance (these amounts for all facilities covered must total the face amount shown below.)]

        Face Amount: _________

        Policy Number: _________

        Effective Date: _________

        Expiration Date: _________

        The insurer certifies that it has issued to the Insured the policy of insurance identified above to provide financial assurance [insert “for facility closure and for post-closure monitoring and maintenance,” or such other language, upon written approval of the Commissioner, which limits or reduces the extent of the activities covered] for the facilities identified above. The Insurer further warrants that the policy conforms in all respects to the requirements of 6 NYCRR Part 370 et seq., 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 Commissioner of the New York State Department of Environmental Conservation (hereinafter referred to as the “Commissioner”), the Insurer agrees to furnish to the Commissioner 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 6 NYCRR 373-2.8(j)(4), as such regulations were constituted on the date shown immediately below.

        [Insert Authorized Signature for Insurer]

        ____________

        [Insert Name of Person Signing]

        [Insert Title of Person Signing]

        Sworn to before me this

        day of .

        Notary Public

    41. (5) A letter from the chief financial officer, as specified in paragraph (d)(5) or (f)(5) of this section, or (d)(5) or (f)(5) of section 373-3.8 of this Part, 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 Commissioner of DEC]

        I am the chief financial officer of [name and address of firm]. This letter is in support of this firm's use of the financial test to demonstrate financial assurance for closure and/or post-closure costs, as specified in 6 NYCRR 373-2.8 and 373-3.8.

        [Fill out the following five paragraphs regarding facilities and associated cost estimates. If your firm has no facilities that belong in a particular paragraph, write “None” in the space indicated. For each facility, include its EPA identification number, name, address, and current closure and/or post-closure cost estimates. Identify each cost estimate as to whether it is for closure or post-closure care.]

    42. 1. This firm is the owner or operator of the following facilities for which financial assurance for closure and/or post-closure care is demonstrated through the financial test specified in 6 NYCRR 373-2.8 and 373-3.8. The current closure and/or post-closure cost estimates covered by the test are shown for each facility: .

    43. 2. This firm guarantees, through the guarantee specified in 6 NYCRR 373-2.8 and 373-3.8, the closure and/or post-closure care of the following facilities owned and operated by the guaranteed party. The current cost estimates for the closure and/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.)

    44. 3. For facilities not located in New York, this firm, as owner or operator or guarantor, is demonstrating financial assurance for the closure, and/or post-closure care of the following facilities through the use of a test equivalent or substantially equivalent to the 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:

        .

    45. 4. This firm is the owner or operator of the following hazardous waste management facilities for which financial assurance for closure or, if a disposal facility, post-closure care, is not demonstrated either to EPA or New York or other states 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: .

    46. 5. This firm is the owner or operator of the following UIC facilities for which financial assurance for plugging and abandonment is required under 40 CFR part 144 (see 6 NYCRR 370.1[e]). The current closure cost estimates as required by 40 CFR 144.62 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 clause (a) of either 6 NYCRR 373-2.8(d)(5)(i) or (f)(5)(i), or 6 NYCRR 373-3.8(d)(5)(i) or (f)(5)(i) are used. Fill in Alternative II if the criteria of clause (b) of either 6 NYCRR 373-2.8(d)(5)(i) or (f)(5)(i), or 6 NYCRR 373-3.8(d)(5)(i) or (f)(5)(i) are used].

        Alternative I

    47. 1. Sum of current closure and post-closure cost estimates (total of all cost estimates shown in the five paragraphs above) $ _____

        *2. Total liabilities (if any portion of the closure or post-closure cost estimates is included in total liabilities, you may deduct the amount of that portion from this line and add that amount to lines 3 and 4) $ _____

        *3. Tangible net worth $ _____

        *4. Net worth $ _____

        *5. Current assets $ _____

        *6. Current liabilities $ _____

        *7 Net working capital (line 5 minus line 6) $ _____

        *8. The sum of net income plus depreciation, depletion and am- ortization $ _____

        *9. Total assets in U.S. (required only if less than 90% of firm's assets are located in the U.S.) $ _____

        Yes No

    48. 10. Is line 3 at least $10 million? _____
    49. 11. Is line 3 at least 6 times line 1? _____

    50. 12. Is line 7 at least 6 times line 1? _____

        *13. Are at least 90% of the firm's assets located in the U.S.? If not, complete line 14. _____

    51. 14. Is line 9 at least 6 times line 1? _____
    52. 15. Is line 2 divided by line 4 less than 2.0? _____
    53. 16. Is line 8 divided by line 2 greater than 0.1? _____

    54. 17. Is line 5 divided by line 6 greater than 1.5? _____

        Alternative II

    55. 1. Sum of current closure and post-closure cost estimates (total of all cost estimates shown in the five paragraphs above) $ _____
    56. 2. Current bond rating of most recent issuance of this firm and name of rating service _____
    57. 3. Date of issuance of bond _____

    58. 4. Date of maturity of bond _____

        *5. Tangible net worth (if any portion of the closure and post- closure cost estimates is included in "total liabilities" on your firm's financial statements, you may add the amount of that portion to this line) $ _____

        *6. Total assets in U.S. (required only if less than 90% $ _____ of firm's assets are located in the U.S.) Yes No

    59. 7. Is line 5 at least 10 million? _____

    60. 8. Is line 5 at least 6 times line 1? _____

        *9. Are at least 90% of the firm's assets located in the U.S.? If not, complete line 10. _____

    61. 10. Is line 6 at least 6 times line 1? _____

        1. (i) A guarantee, as specified in paragraph (d)(5) or (f)(5) of this section, or section 373-3.8(d)(5) or (f)(5) of this Part, must be worded as follows, except that instructions in brackets are to be replaced with the relevant information and the brackets deleted:

           [Date] [City and State]

           GUARANTEE FOR

           CLOSURE AND/OR POST-CLOSURE 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 of incorporation], (hereafter referred to as “Guarantor”). This Guarantee is made on behalf of [insert name 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 6 NYCRR 373-2.8[b] or 373-3.8[b]”) to the New York State Department of Environmental Conservation; and

           WHEREAS, the New York State Department of Environmental Conservation (hereinafter referred to as “Obligee” or “NYSDEC”) is unwilling to issue a permit to, or otherwise authorize or approve the operation or continued operation by, [insert name of owner or operator] of certain hazardous waste management facilities or facility, referred to in paragraph 2 below (hereinafter referred to as the “Facility[ies]”), unless NYSDEC receives a guarantee of the undersigned covering the obligations and liabilities of [insert name of owner or operator] to NYSDEC arising out of the performance of [insert “facility closure and post-closure facility monitoring and maintenance,” or other language upon written approval of the Commissioner which limits or reduces the activity guaranteed] (hereinafter referred to as “closure and post-closure care”) by [insert name of owner or operator] of the hazardous waste management facility(ies);

           NOW, THEREFORE, in consideration of these premises and of other good and valuable consideration, and in order to induce NYSDEC now, and from time to time, in its discretion, to issue permits to [insert name of owner or operator] for the ownership or operation of the hazardous waste management facility(ies) or to allow or authorize [insert name of owner or operator] to continue to conduct the operation or ownership of the hazardous waste management facility(ies), the undersigned hereby guarantees, absolutely and unconditionally, to NYSDEC the payment of all liabilities of [insert name of owner or operator] of whatever nature, whether now existing or hereinafter incurred, and whether absolute or contingent, arising out of the obligation of [insert name of owner or operator] to NYSDEC to perform the required closure and post-closure care, as hereinbefore stated, to or for the facility(ies) in accordance with the plans and permits submitted or issued to [insert name of owner or operator] in accordance with New York State Environmental Conservation Law, article 27, and 6 NYCRR Part 370 et seq., (all of which are hereinafter collectively referred to as the “Liabilities of the [insert name of owner or operator]”).

           Recitals

           The guarantor further states as follows:

        2. 1. Guarantor meets or exceeds the financial test criteria of New York State Environmental Conservation Law, article 27 (hereinafter referred to as “ECL art. 27”) and 6 NYCRR Part 370 et seq., and agrees to comply with the reporting requirements for Guarantors as specified in 6 NYCRR Part 370 et seq.

        3. 2. [Insert name of owner or operator] owns or operates the following hazardous waste management facility(ies) covered by this Guarantee: [List for each facility: EPA identification numbers, names and addresses. Indicate for each facility whether

           Guarantee is for facility closure and post-closure facility monitoring and maintenance, or both].

        4. 3. “Closure plans” and “post-closure plans” (such plans include, where applicable, those agreements between the owner and operator of the subject facility[ies] and NYS DEC as to closure and post-closure care), as used below, refer to the plans prepared, submitted and maintained as required by ECL art. 27 and 6 NYCRR Part 370 et seq., for the closure and post-closure care of the facilities as identified in paragraph 2 above.
        5. 4. For value received from [owner or operator], Guarantor guarantees to NYSDEC that in the event that [insert name of owner or operator] fails to perform closure or post-closure care of the above facility(ies), as referred to in paragraph 2 above, in accordance with the closure or post-closure plans and other permit or interim status requirements, whenever required to do so by the Commissioner of NYSDEC (hereinafter referred to as the “Commissioner”), the Guarantor shall do so or establish a trust fund as specified in 6 NYCRR Part 370 et seq., as applicable, in the name of [owner or operator] in the amount of the current closure and post-closure cost estimates or as specified by the Commissioner.
        6. 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 ninety (90) days, by certified mail, return receipt requested, notice to the Commissioner and to [insert name or owner or operator] that the guarantor intends to provide alternate financial assurance as specified in 6 NYCRR Part 370 et seq., as applicable, in the name of [insert name of owner or operator]. Within 120 days after the end of such fiscal year, the Guarantor shall establish such financial assurance unless [insert name of owner or operator] has done so.
        7. 6. The Guarantor agrees to notify the Commissioner, by certified mail, return receipt requested, of a voluntary or involuntary case or proceeding under 11 USCA (Bankruptcy) naming Guarantor as Debtor, within ten (10) days after commencement of the case of proceeding.
        8. 7. Guarantor agrees that within thirty (30) days after being notified by the Commissioner, of a determination that Guarantor no longer meets the financial test criteria, or that the Guarantor is disallowed from continuing as a Guarantor of closure or post-closure care, the Guarantor shall establish alternate financial assurance as specified in 6 NYCRR Part 370 et seq., as applicable, in the name of [insert name of owner or operator] unless[insert name of owner or operator] has done so.
        9. 8. Guarantor agrees to remain bound under this Guarantee notwithstanding any or all of the following:
        10. (a) amendment or modification of the closure or post-closure plan;
        11. (b) amendment of modification of the permit;
        12. (c) the extension or reduction of the time of performance of closure or post-closure care; or
        13. (d) any other modification or alteration of an obligation of the owner or operator pursuant to 6 NYCRR Part 370 et seq.
        14. 9. Guarantor agrees to remain bound under this Guarantee for so long as [insert name of owner or operator] must comply with the applicable financial assurance requirements of 6 NYCRR Part 370 et seq.,for the above-listed facility(ies), except as provided in paragraph 10 of this agreement.

        15. 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, return receipt requested, to the Commissioner and to [insert name of owner or operator], provided that this guarantee may not be terminated unless and until [insert name of owner or operator] obtains, and the Commissioner approves alternate closure and/or post- closure care coverage complying with 6 NYCRR Part 370 et seq.

            (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, return receipt requested, by the Commissioner and by [insert name of owner or operator].

        16. 11. Guarantor agrees that if [insert name of owner or operator] fails to provide alternate financial assurance as specified in 6 NYCRR Part 370 et seq., as applicable, and obtain written approval of such assurance from the Commissioner, or the Commissioner's designee, within 90 days after a notice of cancellation by the Guarantor is received by the Commissioner from the Guarantor, Guarantor shall provide such alternate financial assurance in the name of [insert name of owner or operator].
        17. 12. Guarantor expressly waives any or all of the following:
        18. (a) notice of acceptance of this Guarantee by the Commissioner or by [insert name of owner or operator];
        19. (b) notice of amendments or modification of the closure and/or post-closure plan;
        20. (c) amendments or modifications of the facility(ies) permit(s); and
        21. (d) any demand to [insert name of owner or operator] for payments which this instrument guarantees.
        22. 13. All monies available to NYSDEC for application in payment or reduction of the liabilities of [insert name of owner or operator] may be applied by NYSDEC in such manner and in such amounts and at such time or times as NYSDEC may see fit to the payment or reduction of such of the liabilities of [insert name of owner or operator] as NYSDEC may elect.
        23. 14. This is a guarantee of payment and not of collection, and the undersigned further waives any right to require that any action be brought against [insert name of owner or operator] or any other person, or to require that resort be had to any security or to any balance of any trust account, letter of credit, insurance policy or surety bond, to the benefit of NYSDEC.
        24. 15. Each reference herein to NYSDEC shall be deemed to include its successors and assigns, in whose favor the provisions of this Guarantee shall also ensure. Each reference herein to the undersigned shall be deemed to include the heirs, executors, administrators, legal representatives, successors and assigns to the undersigned, all of whom shall be bound by the provisions of this Guarantee.
        25. 16. If any party hereto shall be in partnership, the agreements and obligations on the part of the undersigned herein contained shall remain in force and applicable, notwithstanding any changes in the individuals composing the partnership, and the term undersigned shall include any altered or successive partnership, but the predecessor partnerships and their partners shall not thereby be released from any obligation or liability.
        26. 17. No delay on the part of NYSDEC in exercising any right hereunder, or failure to exercise the same, shall operate as a waiver of such right; no notice to or demand on the undersigned shall be deemed to be a waiver of the obligation of the undersigned or of the right of NYSDEC to take further action without notice or demand as provided herein, nor in any event shall any modification or waiver of the provisions of this Guarantee be effective unless in writing, nor shall any such waiver be applicable, except in the specific instance for which given.
        27. 18. This guarantee is, and shall be deemed, a contract entered into under and pursuant to the laws of the State of New York, and shall be in all respects governed, construed, applied and enforced in accordance with the laws of said State; and no defense given or allowed by the laws of any other state or country shall be interposed in any action hereon unless such defense is also given or allowed by the laws of the State of New York.

        28. 19. I hereby certify that the wording of this Guarantee is identical to the wording specified in 6 NYCRR 373-2.8(j)(6)(i) as such regulations were constituted on the day first above written.

            Effective date: _______

            Name of Guarantor

            Authorized Signature for Guarantor

            Name of person signing

            Address

            Title of person signing

            STATE OF :

            : SS.:

            COUNTY OF :

            On this day of , , before me personally came , to me known, who, being by me duly sworn, did depose and say that (s)he is of , the corporation described in and which executed the above instrument; that (s)he knows the seal of said corporation; that the seal affixed to said instrument is such corporate seal; that it was so affixed by order of the board of directors of said corporation, and that (s)he signed his/he name thereto by like order.

            Notary public

        29. (ii) A guarantee, as specified in section 373-2.8(h)(7) or 373-3.8(h)(7) of this Part, 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

            [Date] [City and State]

            Guarantee made this (date) by [name of guaranteeing entity], a business corporation organized under the laws of the State of [insert name of state of incorporation], (hereinafter referred to as “Guarantor”). This guarantee is made on behalf of [insert name 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 6 NYCRR 373-2.8(b) or 373-3.8(b),”) to any and all third parties who have sustained or may sustain bodily injury or property damage caused by (sudden and/or non- sudden) accidental occurrences arising from operation of the facility(ies) covered by this guarantee; and

            WHEREAS, the New York State Department of Environmental Conservation (hereinafter referred to as “NYSDEC”) is unwilling to issue a permit to, or otherwise authorize or approve the operation or continued operation by [insert name of owner or operator] of certain hazardous waste management facilities or facility referred to in paragraph 2 below (hereinafter referred to as “facility(ies)”), unless NYSDEC receives a guarantee of the undersigned covering the obligations and liabilities of [insert name of owner or operator] to any and all third parties who have sustained or may sustain bodily injury or property damage caused by (sudden and/or non-sudden) accidental occurrences arising from the operation of the facilities covered by this guarantee.

            NOW, THEREFORE, in consideration of these premises and of other good and valuable consideration, and in order to induce NYSDEC now, and from time to time, in its discretion, to issue permits to [insert name of owner or operator] for the ownership or operation of the hazardous waste management facility(ies) or to allow or authorize [insert name of owner or operator] to continue to conduct the operation or ownership of the hazardous waste management facility(ies) or to allow or authorize [insert name of owner or operator] to continue to conduct the operation or ownership of the hazardous waste management facility(ies), the undersigned hereby guarantees, absolutely and unconditionally, to such third parties payment of all liabilities of [insert name of owner or operator] of whatever nature, whether now existing or hereinafter incurred, and whether absolute or contingent, caused by (sudden and/or non-sudden) accidental occurrences arising from the operation of the facilities covered by this guarantee.

            Recitals

            The Guarantor further states as follows:

        30. 1. Guarantor meets or exceeds the financial test criteria of New York State Environmental Conservation Law, article 27 (hereinafter referred to as “ECL article 27”) and 6 NYCRR Part 370 et seq. and agrees to comply with the reporting requirements for Guarantors as specified in 6 NYCRR Part 370 et seq.
        31. 2. [Owner or operator] owns or operates the following hazardous waste management facility(ies) covered by this guarantee: [List for each facility: EPA identification number, name and address]. This guarantee satisfies NYSDEC third-party liability requirements for [insert “sudden” or “non-sudden” or “both sudden and non-sudden”] accidental occurrences in above-named owner or operator facilities for coverage in the amount of [insert dollar amount]for each occurrence and [insert dollar amount] annual aggregate.
        32. 3. For value received from [owner or operator] Guarantor guarantees to any and all third parties who have sustained or may sustain bodily injury or property damage caused by (sudden and/or non-sudden) accidental occurrences, arising from operations of the facility(ies) covered by this guarantee that in the event that [owner or operator] fails to satisfy a judgment ow award based on a determination of liability for bodily injury or property damage to third parties caused by (sudden and/or non-sudden) accidental occurrences, arising from the operation of the above-named facilities, or fails to pay an amount agreed to in settlement of a claim arising from or alleged to arise from such injury or damage, the Guarantor will satisfy such judgment(s), award(s), or settlement agreement(s) up to the limits of coverage identified above.
        33. 4. Such obligation does not apply to any of the following:
        34. (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.
        35. (b) Any obligation of [insert owner or operator] under a worker's compensation, disability benefits, or unemployment compensation law or any similar law.
        36. (c) Bodily injury to:
        37. (1) An employee of [insert owner or operator] arising from, and in the course of, employment by [insert owner or operator]; or
        38. (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:
        39. (i) whether [insert owner or operator] may be liable as an employer or in any other capacity; and
        40. (ii) 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).
        41. (d) Bodily injury or property damage arising out of the ownership, maintenance, use, or entrustment to others of any aircraft, motor vehicle or watercraft.
        42. (e) Property damage to:
        43. (1) any property owned, rented, or occupied by [insert owner or operator];
        44. (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;
        45. (3) property loaned to [insert owner or operator];
        46. (4) personal property in the care, custody or control of [insert owner or operator]; and
        47. (5) that particular part of real property on which [insert owner or operator] or any contractors or subcontractors working directly on behalf of [insert owner or operator] are performing operations, if the property damage arises out of these operations.
        48. 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, return receipt requested, notice to the Commissioner and to [owner or operator] that the Guarantor intends to provide alternate liability coverage as specified in 6 NYCRR Part 370 et seq., 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.
        49. 6. The Guarantor agrees to notify the Commissioner, by certified mail, return receipt requested, 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.
        50. 7. Guarantor agrees that within 30 days after being notified by the Commissioner, of a determination that Guarantor no longer meets the financial test criteria or that Guarantor is disallowed from continuing as a Guarantor, the Guarantor shall establish alternate liability coverage as specified in 6 NYCRR Part 370 et seq. in the name of [owner or operator], unless [owner or operator] has done so.
        51. 8. Guarantor reserves the right to modify this agreement to take into account amendment or modification of the liability requirements set by 6 NYCRR Part 370 et seq., provided that such modification shall become effective only if the Commissioner does not disapprove the modification within 30 days of receipt of notification of the modification.
        52. 9. Guarantor agrees to remain bound under this Guarantee for so long as [owner or operator] must comply with the applicable requirements of 6 NYCRR Part 370 et seq. for the above-listed facility(ies) except as provided in paragraph 10 of this agreement.

        53. 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, return receipt requested, to the commissioner and to [owner or operator], provided that this guarantee may not be terminated unless and until [the owner or operator] obtains, and the Commissioner approves alternate liability coverage complying with 6 NYCRR Part 370 et seq.

            [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, return receipt requested by the Commissioner and by [the owner or operator].

        54. 11. Guarantor hereby expressly waives notice of acceptance of this guarantee by any party.
        55. 12. This guarantee is, and shall be deemed to be, a contract entered into under and pursuant to the laws of the State of New York and shall be in all respects governed, construed, applied and enforced in accordance with the laws of said State; and no defense given or allowed by the laws of any other state or country shall be interposed in any action hereon unless such defense is also given or allowed by the laws of the State of New York.
        56. 13. 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.
        57. 14. This is a guarantee of payment and not of collection and the undersigned further waives any right to require that nay action be brought against [insert name of owner or operator] or any other person, or to require that resort be had to any security or to any balance of any trust account, letter of credit, insurance policy, or surety bond, to the benefits of such third party.
        58. 15. Each reference herein to such third parties shall be deemed to include their respective successors and assigns, in whose favor the provisions of this Guarantee shall also ensure. Each reference herein to the undersigned shall be deemed to include the heirs, executors, administrators, legal representatives, successors and assigns of the undersigned, all of whom shall be bound by the provisions of this Guarantee.
        59. 16. If any party hereto shall be in partnership, the agreements and obligations on the part of the undersigned herein contained shall remain in force and applicable notwithstanding any changes in the individuals composing the partnership, and the term undersigned shall include any altered or successive partnership, but the predecessor partnerships and their partners shall not thereby be released from any obligation or liability.
        60. 17. No delay on the part of such third parties in exercising any right hereunder, or failure to exercise the same, shall operate as a waiver of such right; no notice to or demand on the undersigned shall be deemed to be a waiver of the obligation of the undersigned or the right of such third parties to take further action without notice or demand as provided herein, nor in any event shall any modification or waiver of the provisions of this Guarantee be effective unless in writing, nor shall any such waiver be applicable, except in the specific instances for which given.
        61. 18. The Guarantor shall satisfy a third-party liability claim only on receipt of one of the following documents:

        62. (a) Certification from the Principal and the third-party claimant(s) that the liability claim should be paid. The certification must be worded as follows, except that instructions in brackets are to be replaced with the relevant information and the brackets deleted:

            Certification of Valid Claim

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

            (Signatures)

            Principal

            [Notary] Date

            (Signatures)

            Claimant(s)

            [Notary] Date

        63. (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.
        64. 19. 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.

        65. 20. I hereby certify that the wording of this guarantee is identical to the wording specified in 6 NYCRR 373-2.8(j)(6)(ii) as such regulations were constituted on the day shown immediately below.

            Effective date: __________

            [Name of Guarantor]

            [Authorized signature for Guarantor]

            [Name of person signing]

            [Address of person signing]

            [Title of person signing]

            STATE OF :

            : SS.:

            COUNTY OF :

            On this day of , , before me personally came to me known, who, being by me duly sworn, did depose and say that (s)he is of , the corporation described in and which executed the above instrument; that (s)he knows the seal of said corporation; that the seal affixed to said instrument is such corporate seal; that it was so affixed by the order of the Board of Directors of said corporation, and that (s)he signed his/her name thereto by like order.

            Notary Public

        I hereby certify that the wording of this letter is identical to the wording specified in 6 NYCRR 373-2.8(j)(5), as such regulations were constituted on the date shown immediately below.

        [Signature]

        [Name]

        [Title]

        [Date]

        (6)

    62. (7) A hazardous waste facility liability endorsement, as required in subdivision (h) of this section or section 373-3.8(h) of this Part, must be worded as follows, except that instructions in brackets are to be replaced with the relevant information and the brackets deleted:

        HAZARDOUS WASTE FACILITY LIABILITY ENDORSEMENT

    63. 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 6 NYCRR Part 370 et seq. The coverage applies at [list EPA identification numbers, names and addresses for each facility] for [insert “sudden accidental occurrences,” “non-sudden accidental occurrences” or “sudden and non-sudden accidental occurrences”; if coverage is for multiple facilities and the coverage is different for different facilities, indicate which facilities are insured for “sudden accidental occurrences,” which are insured for “non-sudden accidental occurrences,” and which are insured for both]. The limits of liability are [insert the dollar amount of the “each occurrence” and “annual aggregate” limits of the Insurer's liability], exclusive of legal defense costs.^*
    64. 2. The insurance afforded with respect to such occurrences is subject to all the terms and conditions of the policy; provided, however, that any provision of the policy inconsistent with subsections (a) through (f) of this paragraph 2 are hereby amended to conform with such subsections (a) through (f):
    65. (a) Bankruptcy or insolvency of the Insured shall not relieve the Insurer of its obligations under the policy to which this endorsement is attached.
    66. (b) The Insurer is liable for the payment of amounts within any deductible applicable to the policy, with the right of reimbursement from 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 by virtue of the insured satisfying the financial test for liability coverage as established by the New York State Department of Environmental Conservation (hereinafter “NYSDEC”) or by the Commissioner of NYSDEC (hereinafter referred to as the “Commissioner”), and as specified in 6 NYCRR Part 370 et seq.
    67. (c) Whenever requested by the Commissioner, the Insurer agrees to furnish to the Commissioner a signed duplicate original of the policy and all endorsements.
    68. (d) Cancellation of this endorsement, whether by the Insurer or 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, certified mail, return receipt requested, and only after the expiration of sixty (60) days after a copy of such written notice is received by the Commissioner.
    69. (e) Any other termination of this endorsement will be effective only upon written notice, certified mail, return receipt requested, and only after the expiration of thirty (30) days after a copy of such written notice is received by the Commissioner.

    70. (f) This endorsement shall be attached to and form a part of Policy No. _, issued by [name of Insurer] to [name of Insured] of [address] this day of , . The effective date of the policy is the day of , .

        I hereby certify that the wording of this endorsement is identical to the wording specified in 6 NYCRR 373-2.8(j)(7), as such regulation was constituted on the date first above written, and that the Insurer is authorized by the Superintendent of the New York State Insurance Department to conduct the business of insurance within the State of New York or is eligible to provide insurance, where applicable, as an excess or surplus lines insurer within the State of New York.

        ____________

        [Signature of Authorized Representative of Insurer] [Type name] [Title], Authorized Representative of [Name of Insurer] [Address of Representative]

        Date:

        If [name of Insurer] issues this endorsement after the date that the policy takes effect, the [name of Insurer] must complete these spaces and the representative of [name of Insurer] must sign below.

        Policy issued to [owner or operator of a hazardous waste management facility]; Endorsement takes effect on [date]; Policy No. [ ]; Endorsement number: [ ]

        ____________

        [Signature of Authorized Representative of Insurer] [Type name] [Title], Authorized Representative of [Name of Insurer] [Address of Representative]

    71. (8) A certificate of liability insurance, as required by subdivision (h) of either this section or section 373-3.8 of this Part, must be worded as follows, except that the instructions in brackets are to be replaced with the relevant information with the brackets deleted:

        HAZARDOUS WASTE FACILITY CERTIFICATE OF LIABILITY INSURANCE

    72. 1. [Name of Insurer] (the “Insurer”), of [address of Insurer], hereby certifies that it has issued a policy of liability insurance (the “Policy”), 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 6 NYCRR Part 370 et seq. The coverage applies at [list EPA identification numbers, names and addresses for each facility] for [insert “sudden accidental occurrences,” “non-sudden accidental occurrences” or “sudden and non-sudden accidental occurrences”; if coverage is for multiple facilities and the coverage is different for different facilities, indicate which facilities are insured for “sudden accidental occurrences,” which are insured for “nonsudden accidental occurrences,” and which are insured for both]. The limits of liability are [insert the dollar amount of “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], and the expiration date of the policy is ___ [date].
    73. 2. The Insurer further certifies the following with respect to the insurance described in paragraph 1:
    74. (a) Bankruptcy or insolvency of the Insured shall not relieve the Insurer of its obligations under the policy.
    75. (b) The Insurer is liable for the payment of amounts within any deductible applicable to the Policy, with the right of reimbursement from the Insured for any payment made by the Insurer. This provision does not apply with respect to the amount of any deductible for which coverage is demonstrated by virtue of the Insured's satisfying the financial test for liability coverage as established by the New York State Department of Environmental Conservation (hereinafter “NYSDEC”) or by the Commissioner of NYSDEC (hereinafter referred to as the “Commissioner”), and as specified in 6 NYCRR Part 370 et seq.
    76. (c) Whenever requested by the Commissioner, the Insurer agrees to furnish to the Commissioner a signed duplicate original of the policy and all endorsements.
    77. (d) Cancellation of the insurance, whether by the Insurer or 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, certified mail, return receipt requested, and only after the expiration of sixty (60) days after a copy of such written notice is received by the Commissioner.

    78. (e) Any other termination of this insurance will be effective only upon written notice, certified mail, return receipt requested, and only after the expiration of thirty (30) days after a copy of such written notice is received by the Commissioner.

        I hereby certify that the wording of this instrument is identical to the wording specified in 6 NYCRR 373-2.8(j)(8), a such regulation was constituted on the date first above written, and that the Insurer is authorized by the Superintendent of the New York State Insurance Department to conduct the business of an Insurer or is eligible to provide insurance as an excess or surplus lines insurer in the State of New York.

        ____________

        [Signature of Authorized Representative of Insurer] [Type name] [Title], Authorized Representative of [Name of Insurer] [Address of Representative]

        Date:

    79. (9) A letter from the chief financial officer, as specified in paragraph (h)(6) of this section or section 373-3.8(h)(6) of this Part, 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 Commissioner of DEC.]

        I am the chief financial officer of [firm's name and address]. This letter is in support of the use of the financial test to demonstrate financial responsibility for liability coverage [insert “and closure and/or post-closure care” if applicable] as specified in 6 NYCRR 373-2.8 and 373-3.8.

        [Fill out the following paragraphs regarding facilities and liability coverage. If there are no facilities that belong in a particular paragraph, write “None” in the space indicated. For each facility include its EPA identification number, name and address.]

        The firm identified above is the owner or operator of the following facilities for which liability coverage for [insert “sudden” or “non-sudden” or “both sudden and non-sudden”] accidental occurrences is being demonstrated through the financial test specified in 6 NYCRR 373-2.8 and 373-3.8: .

        The firm identified above guarantees, through the guarantee specified in 6 NYCRR 373-2.8 and 373-3.8, liability coverage for [insert “sudden” or “non-sudden” or “both sudden and non-sudden”] accidental occurrences at the following facilities owned or operated by the following: __. The firm identified above is [insert one or more]:

    80. (1) the direct or higher-tier parent corporation of the owner or operator;
    81. (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

    82. (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].

        For facilities not located in New York, this firm is demonstrating liability coverage for [insert “sudden” or “non-sudden” or “both sudden and non-sudden”] accidental occurrences at the following facilities through the use of a test equivalent or substantially equivalent to the test specified in Subpart H of 40 CFR parts 264 and 265 .

        [If you are using the financial test to demonstrate coverage of both liability and closure and post-closure care, fill in the following five paragraphs regarding facilities and associated closure and post-closure cost estimates. If there are no facilities that belong in a particular paragraph, write “None” in the space indicated. For each facility, include its EPA identification number, name, address, and current closure and/or post-closure cost estimates. Identify each cost estimate as to whether it is for closure or post-closure care.]

    83. 1. The firm identified above owns or operates the following facilities for which financial assurance for closure or post-closure care or liability coverage is demonstrated through the financial test specified in 6 NYCRR 373-2.8 and 373-3.8. The current closure and/or post-closure cost estimates covered by the test are shown for each facility: .
    84. 2. The firm identified above guarantees, through the guarantee specified in 6 NYCRR 373-2.8 and 373-3.8, the closure and post-closure care or liability coverage 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: .
    85. 3. For facilities not located in New York, this firm is demonstrating financial assurance for the closure or post-closure care or liability coverage of the following facilities through the use of a test equivalent or substantially equivalent to the test specified in Subpart H of 40 CFR parts 264 and 265. The current closure or post-closure cost estimates covered by such a test are shown for each facility: .
    86. 4. The firm identified above owns or operates the following hazardous waste management facilities for which financial assurance for closure or, if a disposal facility, post-closure care, is not demonstrated either to USEPA or New York or other states through the financial test or any other financial assurance mechanisms 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: .

    87. 5. This firm is the owner or operator or guarantor of the following UIC facilities for which financial assurance for plugging and abandonment is required under 40 CFR part 144 (see 6 NYCRR 370.1[e]) and is assured through a financial test. The current closure cost estimates as required by 40 CFR 144.62 are shown for each facility: .

        This firm [insert “is required” or “is not required”] to file a Form 10K with the Securities and Exchange Commission (SEC) for the latest fiscal year.

        The fiscal year of this firm ends on [month, day]. The figures for the following items marked with an asterisk are derived from this firm's independently audited, year-end financial statements for the latest completed fiscal year, ended [date].

        [Fill in part A if you are using the financial test to demonstrate coverage only for the liability requirements.]

        Part A. Liability Coverage for Accidental Occurrences.

        [Fill in Alternative I if the criteria of 6 NYCRR 373-2.8(h)(6)(i) or 373-3.8(h)(6)(i) are used. Fill in Alternative II if the criteria of 6 NYCRR 373-2.8(h)(6)(ii) or 373-3.8(h)(6)(ii) are used.]

        ALTERNATIVE I

    88. 1. Amount of annual aggregate liability coverage to be demonstrated $ ____

        *2. Current assets $ ____

        *3. Current liabilities $ ____

    89. 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 $ ____

        Yes No

    90. 7. Is line 5 at least $10 million? __ __
    91. 8. Is line 4 at least 6 times line 1? __ __

    92. 9. Is line 5 at least 6 times line 1? __ __

        *10. Are at least 90% of firm's assets located in the U.S.? __ __

        If not, complete line 11.

    93. 11. Is line 6 at least 6 times line 1? __ __

        ALTERNATIVE II

        *1. Amount of annual aggregate liability coverage to

        be demonstrated $ ____

    94. 2. Current bond rating of most recent issuance and

        name of rating service $ ____

    95. 3. Date of issuance of bond $ ____

    96. 4. Date of maturity of bond $ ____

        *5. Tangible net worth $ ____

        *6. Total assets in U.S. (required only if less than

        90% of assets are located in the U.S.) $ ____

        Yes No

    97. 7. Is line 5 at least $10 million? __ __

    98. 8. Is line 5 at least 6 times line 1? __ __

        *9. Are at least 90% of firm's assets located in the U.S.? __ __

        If not, complete line 10.

    99. 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 closure or post-closure care.]

        Part B. Closure or Post-Closure Care and Liability Coverage.

        [Fill in Alternative I if the criteria of 6 NYCRR 373-2.8(d)(5)(i)(a) or (f)(5)(i)(a) and subparagraph (h)(6)(i) are used, or if the criteria of 6 NYCRR 373-3.8(d)(5)(i)(a) or (f)(5)(i)(a) and subparagraph (h)(6)(i) are used. Fill in Alternative II if the criteria of 6 NYCRR 373-2.8(d)(5)(i)(b) or (f)(5)(i)(b) and subparagraph (h)(6)(ii) are used, or if the criteria of 6 NYCRR 373-3.8(d)(5)(i)(b) or (f)(5)(i)(b) and subparagraph (h)(6)(ii) are used.]

        ALTERNATIVE I

    100. 1. Sum of current closure and post-closure cost estimates

         (total of all cost estimates listed above) $ ____

    101. 2. Amount of annual aggregate liability coverage

         to be demonstrated $ ____

    102. 3. Sum of lines 1 and 2 $ ____

         *4. Total liabilities [if any portion of your closure or post-

         closure cost estimate 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 $ ____

    103. 9. Net working capital (line 7 minus line 8) $ ____

         *10. The sum of net income plus depreciation, depletion

         and amortization $ ____

         *11. Total assets in U.S. (required only if less than 90% of

         assets are located in the U.S.) $ ____

         Yes No

    104. 12. Is line 5 at least $10 million? __ __
    105. 13. Is line 5 at least 6 times line 3? __ __

    106. 14. Is line 9 at least 6 times line 3? __ __

         *15. Are at least 90% of assets located in the U.S.?

         If not, complete line 16. __ __

    107. 16. Is line 11 at least 6 times line 3? __ __
    108. 17. Is line 4 divided by line 6 less than 2.0 __ __
    109. 18. Is line 10 divided by line 4 greater than 0.1? __ __

    110. 19. Is line 7 divided by line 8 greater than 1.5? __ __

         ALTERNATIVE II

    111. 1. Sum or current closure and post-closure cost estimates (total of all cost

         estimates listed above) $ ____

    112. 2. Amount of annual aggregate liability coverage to

         be demonstrated $ ____

    113. 3. Sum of lines 1 and 2 $ ____

    114. 4. Current bond rating of most recent issuance and

         name of rating service $ ____

    115. 5. Date of issuance of bond $ ____

    116. 6. Date of maturity of bond $ ____

         *7. Tangible net worth [if any portion of the closure

         or post-closure 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.) $ ____

         Yes No

    117. 9. Is line 7 at least $10 million? __ __

    118. 10. Is line 7 at least 6 times line 3? __ __

         *11. Are at least 90% of assets located in the U.S.? __ __

         If not, complete line 12.

    119. 12. Is line 8 at least 6 times line 3? __ __

         I hereby certify that the wording of this letter is identical to the wording specified in 6 NYCRR 373-2.8(j)(9), as such regulations were constituted on the date shown immediately below.

         [Signature]

         [Name]

         [Title]

         [Date]

    120. (10) A letter of credit, as specified in paragraph (h)(8) of this section or section 373-3.8(h) of this Part, 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

         Commissioner of NYSDEC

         625 Broadway

         Albany, NY 12233-1011

         RE: Letter of Credit No. __

         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's 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, exclusive of legal defense costs, and/or for third-party liability awards or settlements up to the amount of [in words] U.S. dollars [$ ___] per occurrence and the annual aggregate amount of [in words] U.S. dollars [$ ___] for non-sudden accidental occurrences, exclusive of legal defense costs, 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:

         Certification of Valid Claim

         The undersigned, as parties, [insert Principal] and [insert name and address of third- party claimant(s)], hereby certify that the claim of bodily injury (and/or) property damage caused by a [sudden or non-sudden] accidental occurrence arising from operations of [Principal's] hazardous waste treatment, storage, or disposal facility should be paid in the amount of [$ ]. We hereby certify that the claim does not apply to any of the following:

    121. (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.
    122. (b) Any obligation of [insert Principal] under a workers' compensation, disability benefits, or unemployment compensation law or any similar law.
    123. (c) Bodily injury to:
    124. (1) An employee of [insert Principal] arising from, and in the course of, employment by [insert Principal]; or

    125. (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:

    126. (i) whether [insert Principal] may be liable as an employer or in any other capacity; and
    127. (ii) 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).
    128. (d) Bodily injury or property damage arising out of the ownership, maintenance, use, or entrustment to others of any aircraft, motor vehicle or watercraft.
    129. (e) Property damage to:
    130. (1) Any property owned, rented, or occupied by [insert principal];
    131. (2) Premises that are sold, given away or abandoned by [insert Principal] if the property damage arises out of any part of those premises;
    132. (3) Property loaned to [insert Principal];
    133. (4) Personal property in the care, custody or control of [insert Principal];

    134. (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.

         (Signature)

         Grantor

         (Signature)

         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 Commissioner of NYS DEC and [owner's or operator's name] by certified mail, return receipt requested, that we have decided not to extend this letter of credit beyond the current expiration date.

         Whenever this letter of credit is drawn on under and in compliance with the terms of this credit, we shall duly honor such draft upon presentation to us.

         (Insert the following language if a standby trust fund is not being used: “In the event that this letter of credit is used in combination with another mechanism for liability coverage, this letter of credit shall be considered [insert “primary” or “excess” ] coverage.”)

         We certify that the wording of this letter of credit is identical to the wording specified in 6 NYCRR 373-2.8(j)(10) as such regulations were constituted on the date shown immediately below.

         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”].

         [Signature(s)]

         [Name(s) and Title(s) of official(s) of issuing institution]

         [Date]

    135. (11) A surety bond, as specified in paragraph (h)(9) of this section or section 373-3.8(h)(9) of this Part, 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, name, and address for each facility guaranteed by this bond:

         	Sudden	Nonsudden
         	accidental	accidental
         	occurrences	occurrences
         Penal Sum Per	[insert amount]	[insert amount]
         Occurrence
         Annual	[insert amount]	[insert amount]
         Aggregate

         Purpose: This is an agreement between the Surety(ies) and the Principal under which the Surety(ies), its [their] successors and assignees, agree to be responsible for the payment of claims against the Principal for bodily injury and/or property damage to third parties caused by [“sudden” and/or “non-sudden” ] accidental occurrences arising from operations of the facility or group of facilities in the sums prescribed herein, exclusive of legal defense costs; subject to the governing provisions and the following conditions.

         Governing Provisions:

    136. (1) Article 27 of the Environmental Conservation Law.

    137. (2) Rules and regulations of the New York State Department of Environmental Conservation (DEC), particularly 6 NYCRR [“373-2.8(h)” or “373-3.8(h)”] [if applicable].

         Conditions:

    138. (1) The Principal is subject to the applicable governing provisions that require the Principal to have and maintain liability coverage for bodily injury and property damage to third parties caused by [“sudden” and/or “non-sudden”] accidental occurrences arising from operations of the facility or group of facilities. Such obligation does not apply to any of the following:
    139. (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.
    140. (b) Any obligation of [insert principal] under a worker's compensation, disability benefits, or unemployment compensation law or similar law.
    141. (c) Bodily injury to:
    142. (i) An employee of [insert principal] arising from, and in the course of, employment by [insert principal]; or

    143. (ii) 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 (i) and (ii).

    144. (d) Bodily injury or property damage arising out of the ownership, maintenance, use, or entrustment to others of any aircraft, motor vehicle or watercraft.
    145. (e) Property damage to:
    146. (i) any property owned, rented, or occupied by [insert principal];
    147. (ii) premises that are sold, given away or abandoned by [insert principal] if the property damage arises out of any part of those premises;
    148. (iii) property loaned to [insert principal];
    149. (iv) personal property in the care, custody or control of [insert principal];
    150. (v) 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.
    151. (2) This bond assures that the Principal will satisfy valid third party liability claims, as described in condition (1).
    152. (3) If the principal fails to satisfy a valid third party liability claim, as described above, the Surety(ies) become liable on this bond obligation.
    153. (4) The Surety(ies) shall satisfy a third party liability claim only upon the receipt of one of the following documents:

    154. (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 non-sudden] accidental occurrence arising from operating [Principal's] hazardous waste treatment, storage, or disposal facility should be paid in the amount of $[ ].

         [Signature]

         Principal

         [Notary] Date

         [Signature(s)]

         Claimant(s)

         [Notary] Date

         or (b) A valid final court order establishing a judgment against the Principal for bodily injury or property damage caused by sudden or non-sudden accidental occurrences arising from the operation of the Principal's facility or group of facilities.

    155. (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.
    156. (6) The liability of the Surety(ies) shall not be discharged by any payment or succession of payments or 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 Commissioner forthwith of all claims and payments made by the Surety(ies) under this bond.
    157. (7) The Surety(ies) may cancel the bond by sending notice of cancellation by certified mail, return receipt requested, to the Principal and the Commissioner of NYS DEC 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 Commissioner, as evidenced by the return receipts.
    158. (8) The Principal may terminate this bond by sending written notice, by certified mail, return receipt requested, to the Surety(ies) and to the Commissioner of NYSDEC.
    159. (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.

    160. (10) This bond is effective from [insert date] (12:01 A.M., standard time, at the address of the Principal as stated herein) and shall continue in force until terminated as described above.

         IN WITNESS WHEREOF, the Principal and Surety(ies) have executed this Bond and have affixed their seals on the date set forth above.

         The persons whose signatures appear below hereby certify that they are authorized to execute this surety bond on behalf of the Principal and Surety(ies) and that the wording of this surety bond is identical to the wording specified in 6 NYCRR 373-2.8(j)(11), 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: $

    161. (12) A trust agreement, as specified in paragraph (h)(10) of this section or section 373-3.8(h)(10) of this part, 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 New York State Department of Environmental Conservation hereinafter referred to as (“NYSDEC”) has established certain regulations applicable to the Grantor, requiring that an owner or operator of a hazardous waste management facility or group of facilities must demonstrate financial responsibility for bodily injury and property damage to third parties caused by sudden accidental and/or nonsudden accidental occurrences arising from operations of the facility or group of facilities.

         WHEREAS, the Grantor has elected to establish a trust to assure all or part of such financial responsibility for the facilities identified herein.

         WHEREAS, the Grantor, acting through its duly authorized officers, has selected the Trustee to be the trustee under this agreement, and the trustee is willing to act as trustee.

         NOW, THEREFORE, the Grantor and the Trustee agree as follows:

         Section 1. Definitions. As used in this Agreement:

    162. (a) The term “Grantor” means the owner or operator who enters into this Agreement and any successors or assigns of the Grantor.
    163. (b) The term “Trustee” means the trustee who enters into this Agreement and any successor Trustee.

    164. (c) The term “Commissioner” means the Commissioner of the New York State Department of Environmental Conservation, or the commissioner's duly appointed designee.

         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, name, and address of the facility(ies) and the amount of liability coverage, or portions thereof, if more than one instrument affords combined coverage as demonstrated by this Agreement].

         Section 3. Establishment of Fund. The Grantor and the Trustee hereby establish a trust fund, hereinafter the “Fund,” for the benefit of any and all third parties injured or damaged by [sudden and/or non-sudden] accidental occurrences arising from operation of the facility(ies) covered by this guarantee, in the amounts of [$ ] (up to $1 million) per occurrence and [$ ] (up to $2 million) annual aggregate for sudden accidental occurrences, exclusive of legal defense costs; and [$ ] (up to $4.5 million for each separate facility in New York) per occurrence and [$ ] (up to $9 million for each separate facility in New York) annual aggregate for non-sudden accidental occurrences, exclusive of legal defense costs, except that the Fund is not established for the benefit of third parties for the following:

    165. (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.
    166. (b) Any obligation of [insert Grantor] under a workers' compensation, disability benefits, or unemployment compensation law or any similar law.
    167. (c) Bodily injury to:
    168. (1) An employee of [insert Grantor] arising from, and in the course of employment by [insert Grantor]; or

    169. (2) The spouse, child, parent, bother or sister of that employee as a consequence of, or arising from, and in the course of employment by [insert Grantor].

         This exclusion applies:

    170. (i) whether [insert Grantor] may be liable as an employer or in any other capacity; and
    171. (ii) 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).
    172. (d) Bodily injury or property damage arising out of ownership, maintenance, use, or entrustment to others of any aircraft, motor vehicle or watercraft.
    173. (e) Property damage to:
    174. (1) Any property owned, rented or occupied by [insert Grantor];
    175. (2) Premises that are sold, given away or abandoned by [insert Grantor] if the property damage arises out of any part of those premises;
    176. (3) Property loaned to [insert Grantor];
    177. (4) Personal property in the care, custody or control of [insert Grantor];

    178. (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 NYSDEC.

         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:

    179. (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] hazardous waste treatment, storage, or disposal facility should be paid in the amount of [$ ].

         [Signatures]

         Grantor

         [Signatures]

         Claimant(s)

    180. (b) A valid final court order establishing a judgment against the Grantor for bodily injury or property damage caused by sudden or non-sudden accidental occurrences arising from the operation of the Grantor's facility or group of facilities.

         Section 5. Payments Comprising the Fund. Payments made to the Trustee for the Fund shall consist of cash or securities acceptable to the Trustee.

         Section 6. Trustee Management. The Trustee shall invest and reinvest the principal and income, in accordance with general investment policies and guidelines which the Grantor may communicate in writing to the Trustee from time to time, subject, however, to the provisions of this section. In investing, reinvesting, exchanging, selling, and managing the Fund, the Trustee shall discharge his or her 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:

    181. (a) Securities or other obligations of the Grantor, or any other owner or operator of the facilities, or any of their affiliates as defined in the Investment Company Act of 1940, as amended, 15 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;
    182. (b) The Trustee is authorized to invest the Fund in time or demand deposits of the Trustee, to the extent insured by an agency of the Federal or State government; and

    183. (c) The Trustee is authorized to hold cash awaiting investment or distribution uninvested for a reasonable time and without liability for the payment of interest thereon.

         Section 7. Commingling and Investment. The Trustee is expressly authorized in its discretion:

    184. (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

    185. (b) To purchase shares in any investment company, registered under the Investment Company Act of 1940, 15 U.S.C. 81-a-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 other provisions of this Agreement or by law, the Trustee is expressly authorized and empowered:

    186. (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;
    187. (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;
    188. (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 time show that all such securities are part of the Fund;
    189. (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

    190. (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 Commissioner of NYSDEC a statement conforming 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 Commissioner of NYSDEC 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 writing sent to the Grantor, the Commissioner 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 Commissioner to the Trustee shall be in writing, signed by the Commissioner or the Commissioner's designee, 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 NYSDEC 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 NYSDEC, except as provided for herein.

         Section 15. Notice of nonpayment. If a payment for a 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 Commissioner.

         Section 16. Amendment of Agreement. This Agreement may be amended by an instrument in writing executed by the Grantor, the Trustee, and the Commissioner, or by the Trustee and the Commissioner 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 Commissioner, or by the Trustee and the Commissioner, 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 Commissioner will agree to termination of the Trust when the owner or operator substitutes alternate financial assurance as specified in sections 373-2.8 and 373-3.8 of this Part.

         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 Commissioner issued in accordance with this Agreement. The Trustee shall be indemnified and saved harmless by the Grantor or from the Trust Fund, or both, from and against any personal liability to which the Trustee may be subjected by reason of any act or conduct in its official capacity, including all expenses reasonably incurred in its defense in the event the Grantor fails to provide such defense.

         Section 19. Choice of Law. This Agreement shall be administered, construed, and enforced according to the laws of the State of New York.

         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 6 NYCRR 373-2.8(j)(12) as such regulations were constituted on the date first above written.

         [Signature of Grantor]

         [Title]

         Attest:

         [Seal]

         [Signature of Trustee]

         [Title]

         Attest:

         [Seal]

         (ACKNOWLEDGEMENT BY TRUSTEE, IF A BANK)

         STATE OF :

         : SS.:

         COUNTY OF :

         On this day of , , before me personally came to me known who, by me duly sworn, did depose and say that (s)he resides in ; that (s)he is the of , the banking institution described in and which executed the within Trust Fund Agreement; and that (s)he signed his/her name thereto by authority of such banking institution.

         Notary Public

         (ACKNOWLEDGEMENT BY TRUSTEE, IF A CORPORATION)

         STATE OF :

         : SS.:

         COUNTY OF :

         On this day of , , before me personally came to me known who, by me duly sworn, did depose and say that (s)he resides in ; that (s)he is the of , the corporation described in and which executed the within Trust Agreement, that (s)he knows the seal of said corporation; that the seal affixed to said instrument was such corporate seal; that it was so affixed by order of the Board of Directors of said corporation, and that (s)he signed his/her name thereto by like order.

         Notary Public

         (ACKNOWLEDGEMENT BY GRANTOR/OWNER OPERATOR, UNLESS IT BE A CORPORATION)

         STATE OF :

         : SS.:

         COUNTY OF :

         On this day of , , before me personally came to me known and known to me to be the person(s) described in and who executed the within Trust Fund Agreement; and acknowledged that (s)he executed the same.

         Notary Public

         (ACKNOWLEDGEMENT BY GRANTOR/OWNER OPERATOR, IF A CORPORATION)

         STATE OF :

         : SS.:

         COUNTY OF :

         On this day of , , before me personally came to me known who, by me duly sworn, did depose and say that (s)he resides in ; that (s)he is the of , the corporation described in and which executed the within Trust Agreement; that (s)he knows the seal of said corporation; that the seal affixed to said instrument was such corporate seal; that it was so affixed by order of the Board of Directors of said corporation, and that (s)he signed his/her name thereto by like order.

         Notary Public

    191. (13) A standby trust agreement, as specified in section 373-2.8(h) or 373-3.8(h) of this Subpart, 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 New York State Department of Environmental Conservation, an agency of the New York State government, has established certain regulations applicable to the Grantor, requiring that an owner or operator of a hazardous waste management facility or group of facilities must demonstrate financial responsibility for bodily injury and property damage to third parties caused by sudden and/or non-sudden accidental occurrences arising from operations of the facility or group of facilities.

         WHEREAS, the Grantor has elected to establish a standby trust into which the proceeds from a letter of credit may be deposited to assure all or part of such financial responsibility for the facilities identified herein.

         WHEREAS, the Grantor, acting through its duly authorized officers, has selected the Trustee to be the trustee under this agreement, and the Trustee is willing to act as trustee.

         NOW, THEREFORE, the Grantor and the Trustee agree as follows:

         Section 1. Definitions. As used in this Agreement:

    192. (a) The term “Grantor” means the owner or operator who enters into this Agreement and any successors or assigns of the Grantor.
    193. (b) The term “Trustee” means the Trustee who enters into this Agreement and any successor Trustee.

    194. (c) The term “Commissioner” means the Commissioner of the New York State Department of Environmental Conservation or the Commissioner's duly appointed designee.

         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, name, and address of the facility[ies] and the amount of liability coverage, or portions thereof, if more than one instrument affords combined coverage as demonstrated by this Agreement).

         Section 3. Establishment of Fund. The Grantor and the Trustee hereby establish a standby trust fund, hereafter the “Fund,” for the benefit of any and all third parties injured or damaged by (sudden and/or non-sudden) accidental occurrences arising from operation of the facility(ies) covered by this guarantee, in the amounts of _ (up to $1 million) per occurrence and __ (up to $2 million) annual aggregate for sudden accidental occurrences arising, exclusive of legal defense costs, and __ (up to $4.5 million for each separate facility in New York) per occurrence and _ (up to $9 million for each separate facility in New York) annual aggregate for nonsudden accidental occurrences, exclusive of legal defense costs, except that the Fund is not established for the benefit of third parties for the following:

    195. (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.
    196. (b) Any obligation of [insert Grantor] under a workers' compensation, disability benefits, or unemployment compensation law or any similar law.
    197. (c) Bodily injury to:
    198. (1) An employee of [insert Grantor] arising from, and in the course of, employment by [insert Grantor]; or

    199. (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:

    200. (i) whether [insert Grantor] may be liable as an employer or in any other capacity; and
    201. (ii) 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).
    202. (d) Bodily injury or property damage arising out of the ownership, maintenance, use, or entrustment to others of any aircraft, motor vehicle or watercraft.
    203. (e) Property damage to:
    204. (1) Any property owned, rented, or occupied by [insert Grantor];
    205. (2) Premises that are sold, given away or abandoned by [insert Grantor] if the property damage arises out of any part of those premises;
    206. (3) Property loaned by [insert Grantor];
    207. (4) Personal property in the care, custody or control of [insert Grantor];

    208. (5) That particular part of real property on which [insert Grantor] or any contractors or subcontractors working directly or indirectly on behalf of [insert Grantor] are performing operations, if the property damage arises out of these operations.

         In the event of combination with another mechanism for liability coverage, the fund shall be considered [insert “primary” or “excess”] coverage.

         The Fund is established initially as consisting of the proceeds of the letter of credit deposited into the Fund. Such proceeds and any other property subsequently transferred to the Trustee is referred to as the Fund, together with all earnings and profits thereon, less any payments or distributions made by the Trustee pursuant to this Agreement. The Fund shall be held by the Trustee, IN TRUST, as hereinafter provided. The Trustee shall not be responsible nor shall it undertake any responsibility for the amount or adequacy of, nor any duty to collect from the Grantor, any payments necessary to discharge any liabilities of the Grantor established by the New York State Department of Environmental Conservation.

         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:

    209. (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) hazardous waste treatment, storage, or disposal facility should be paid in the amount of $[ ].

         (Signature)

         Grantor

         (Signatures)

         Claimant(s)

    210. (b) A valid final court order establishing a judgment against the Grantor for bodily injury or property damage caused by sudden or non-sudden accidental occurrences arising from the operation of the Grantor's facility or group of facilities.

         Section 5. Payments Comprising the Fund. Payments made to the Trustee for the Fund shall consist of the proceeds from the letter of credit drawn upon by the Trustee in accordance with the requirements of 6 NYCRR 373-2.8(j)(10) 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 or her 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:

    211. (a) Securities or other obligations of the Grantor, or any other owner or operator of the facilities, or any of their affiliates as defined in the Investment Company Act of 1940, as amended, 15 U.S.C. 80a-2(a) (see section 370.1[e] of this Title), shall not be acquired or held, unless they are securities or other obligations of the Federal or a State government;
    212. (b) The Trustee is authorized to invest the Fund in time or demand deposits of the Trustee, to the extent insured by an agency of the Federal or a State government; and

    213. (c) The Trustee is authorized to hold cash awaiting investment or distribution uninvested for a reasonable time and without liability for the payment of interest thereon.

         Section 7. Commingling and Investment. The Trustee is expressly authorized in its discretion:

    214. (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

    215. (b) To purchase shares in any investment company registered under the Investment Company Act of 1940, 15 U.S.C. 80a-1 et seq. (see 370.1[e] of this Title), 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:

    216. (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 of expediency of any such sale or other disposition;
    217. (b) To make, execute, acknowledge, and deliver any and all documents of transfer and conveyance and any and all instruments that may be necessary or appropriate to carry out the powers herein granted;
    218. (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;
    219. (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

    220. (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 Commissioner and the present Trustee by certified mail, return receipt requested, 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 Commissioner hereunder has occurred. The Trustee shall have no duty to act in the absence of such orders, requests, and instructions from the Grantor and/or the Commissioner, 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 Commissioner, or by the Trustee and the Commissioner 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 Commissioner, or by the Trustee and the Commissioner, 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 Commissioner will agree to termination of the Trust when the owner or operator substitutes and the Commissioner approves alternative financial assurance as specified in section 373-2.8 or 373-3.8 of this part.

         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 Commissioner 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 New York.

         Section 18. Interpretation. As used in this Agreement, words in the singular include the plural and words in the plural include the singular. The descriptive headings for each Section of this Agreement shall not affect the interpretation 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 6 NYCRR 373-2.8(j)(13) as such regulations were constituted on the date first above written.

         (Signature of Grantor)

         [Title]

         Attest:

         [Title]

         [Seal]

         [Signature of Trustee]

         Attest:

         [Title]

         [Seal]

         The following are examples of the certification of acknowledgement which must accompany the trust agreement for a standby trust fund as specified in 6 NYCRR 373-2.8(h)(8) or 373-3.8(h)(8) of this part.

         (ACKNOWLEDGEMENT BY TRUSTEE, IF A BANK)

         STATE OF :

         : SS.:

         COUNTY OF :

         On this day of , , before me personally came , to me known who, by me duly sworn, did depose and say that (s)he resides in ; that (s)he is the of , the banking institution described in and which executed the within Trust Fund Agreement; and that (s)he signed his/her name thereto by authority of such banking institution.

         Notary Public

         (ACKNOWLEDGEMENT BY TRUSTEE, IF A CORPORATION)

         STATE OF :

         : SS.:

         COUNTY OF :

         On this day of , , before me personally came , to me known who, by me duly sworn, did depose and say that (s)he resides in ; that (s)he is the of , the corporation described in and which executed the within Trust Fund Agreement, that (s)he knows the seal of said corporation; that it was so affixed by order of the Board of Directors of said corporation, and that (s)he signed his/her name thereto by authority of such banking institution.

         Notary Public

         (ACKNOWLEDGEMENT BY GRANTOR/OWNER OPERATOR, UNLESS IT BE A CORPORATION)

         STATE OF :

         : SS.:

         COUNTY OF :

         On this day of , , before me personally came to me known and known by me to be the person(s) described in and who executed the within Trust Fund Agreement; and acknowledged that (s)he executed the same.

         Notary Public

         (ACKNOWLEDGEMENT BY GRANTOR/OWNER OPERATOR, IF A CORPORATION)

         STATE OF :

         : SS.:

         COUNTY OF :

         On this day of , , before me personally came to me known who, by me duly sworn did depose and say that (s)he resides in ; that (s)he is the of , the corporation described in and which executed the within Trust Fund Agreement; that (s)he knows the seal of said corporation; that the seal affixed to said instrument was such corporate seal; that it was so affixed by order of the Board of Directors of said corporation, and that (s)he signed his/her name thereto by like order.

         Notary Public

(a) Applicability.