40 CFR Part 264 -- STANDARDS FOR
OWNERS AND OPERATORS OF HAZARDOUS WASTE TREATMENT, STORAGE, AND DISPOSAL FACILITIES
§264.147 Liability requirements.
(g) A letter from the chief financial officer, as specified in §264.147(f) or
§265.147(f) of this chapter, must be worded as follows, except that instructions in
brackets are to be replaced with the relevant information and the brackets deleted.
Letter From Chief Financial Officer
(Address to Regional Administrator of every Region in which facilities for which financial
responsibility is to be demonstrated through the financial test are located.)
I am the chief financial officer of (firm's name and address). This letter is in support
of the use of the financial test to demonstrate financial responsibility for liability
coverage (insert "and closure and/or post-closure care'' if applicable) as specified
in subpart H of 40 CFR Parts 264 and 265.
(Fill out the following paragraphs regarding facilities and liability coverage. If there
are no facilities that belong in a particular paragraph, write "None'' in the space
indicated. For each facility, include its EPA Identification Number, name, and address.)
The firm identified above is the owner or operator of the following facilities for which
liability coverage for (insert "sudden'' or "nonsudden'' or "both sudden
and nonsudden'') accidental occurrences is being demonstrated through the financial test
specified in subpart H of 40 CFR Parts 264 and 265: XXXX.
The firm identified above guarantees, through the guarantee specified in subpart H or 40
CFR Parts 264 and 265, liability coverage for (insert "sudden'' or "nonsudden''
or "both sudden and nonsudden'') accidental occurrences at the following facilities
owned or operated by the following: XXXX. 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 XXXX; or (3) engaged in
the following substantial business relationship with the owner or operator XXXX, and
receiving the following value in consideration of this guarantee XXXX.) (Attach a written
description of the business relationship or a copy of the contract establishing such
relationship to this letter.)
(If you are using the financial test to demonstrate coverage of both liability and closure
and post-closure care, fill in the following four 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.)
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 subpart H of 40 CFR Parts 264 and 265. The current closure
and/or post-closure cost estimate covered by the test are shown for each facility: XXXX.
2. The firm identified above guarantees, through the guarantee specified in subpart H of
40 CFR Parts 264 and 265, 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: XXXX.
3. In States where EPA is not administering the financial requirements of subpart H of 40
CFR Parts 264 and 265, this firm is demonstrating financial assurance for the closure or
post-closure care of the following facilities through the use of a test equivalent or
substantially equivalent to the financial test specified in subpart H of 40 CFR Parts 264
and 265. The current closure or post-closure cost estimates covered by such a test are
shown for each facility: XXXX.
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 EPA or a State 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: XXXX.
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. The current
closure cost estimates as required by 40 CFR §144.62 are shown for each facility: XXXX.
This firm (insert "is required'' or "is not required'') to file a Form 10K with
the Securities and Exchange Commission (SEC) for the latest fiscal year.
The fiscal year of this firm ends on (month, day). The figures for the following items
marked with an asterisk are derived from this firm's independently audited, year-end
financial statements for the latest completed fiscal year, ended (date).
(Fill in Part A if you are using the financial test to demonstrate coverage only for the
liability requirements.)
Part A. Liability Coverage for Accidental Occurrences
(Fill in Alternative I if the criteria of paragraph (f)(1)(i) of §264.147 or §265.147
are used. Fill in Alternative II if the criteria of paragraph (f)(1)(ii) of §264.147 or
§265.147 are used.)
TABLE/GRAPH OMITTED
(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 paragraphs (f)(1)(i) of §264.143 or §264.145
and (f)(1)(i) of §264.147 are used or if the criteria of paragraphs (e)(1)(i) of
§265.143 or §265.145 and (f)(1)(i) of §265.147 are used. Fill in Alternative II if the
criteria of paragraphs (f)(1)(ii) of §264.143 or §264.145 and (f)(1)(ii) of §264.147
are used or if the criteria of paragraphs (e)(1)(ii) of §265.143 or §265.145 and
(f)(1)(ii) of §265.147 are used.)
TABLE/GRAPH OMITTED
I hereby certify that the wording of this letter is identical to the wording specified in
40 CFR §264.151(g) as such regulations were constituted on the date shown immediately
below.
(Signature)
(Name)
(Title)
(Date)
(h)(1) A corporate guarantee, as specified in §264.143(f) or §264.145(f) or §265.143(e)
or §265.145(e) of this chapter, must be worded as follows, except that instructions in
brackets are to be replaced with the relevant information and the brackets deleted:
Corporate Guarantee for Closure 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), herein referred to as
guarantor, to the United States Environmental Protection Agency (EPA), obligee, on behalf
of our subsidiary (owner or operator) of (business address).
Recitals
1. Guarantor meets or exceeds the financial test criteria and agrees to comply with the
reporting requirements for guarantors as specified in 40 CFR §264.143(f), §264.145(f),
§265.143(e), and §265.145(e).
2. (Owner or operator) owns or operates the following hazardous waste management
facility(ies) covered by this guarantee: (List for each facility: EPA Identification
Number, name, and address. Indicate for each whether guarantee is for closure,
post-closure care, or both.)
3. "Closure plans'' and "post-closure plans'' as used below refer to the plans
maintained as required by subpart G of 40 CFR Parts and 265 for the closure and
post-closure care of facilities as identified above.
4. For value received from (owner or operator), guarantor guarantees to EPA that in the
event that (owner or operator) fails to perform (insert "closure,''
"post-closure care'' or "closure and post-closure care'') of the above
facility(ies) in accordance with the closure or post-closure plans and other permit or
interim status requirements whenever required to do so, the guarantor shall do so or
establish a trust fund as specified in subpart H of 40 CFR Part 264 or 265, as applicable,
in the name of (owner or operator) in the amount of the current closure or post-closure
cost estimates as specified in subpart H of 40 CFR Parts 264 and 265.
5. Guarantor agrees that if, at the end of any fiscal year before termination of this
guarantee, the guarantor fails to meet the financial test criteria, guarantor shall send
within 90 days, by certified mail, notice to the EPA Regional Administrator(s) for the
Region(s) in which the facility(ies) is (are) located and to (owner or operator) that he
intends to provide alternate financial assurance as specified in subpart H of 40 CFR Part
264 or 265, as applicable, in the name of (owner or operator). Within 120 days after the
end of such fiscal year, the guarantor shall establish such financial assurance unless
(owner or operator) has done so.
6. The guarantor agrees to notify the EPA Regional Administrator by certified mail, of a
voluntary or involuntary proceeding under Title 11 (Bankruptcy), U.S. Code, naming
guarantor as debtor, within 10 days after commencement of the proceeding.
7. Guarantor agrees that within 30 days after being notified by an EPA Regional
Administrator of a determination that guarantor no longer meets the financial test
criteria or that he is disallowed from continuing as a guarantor of closure or
post-closure care, he shall establish alternate financial assurance as specified in
subpart H of 40 CFR Part 264 or 265, as applicable, in the name of (owner or operator)
unless (owner or operator) has done so.
8. Guarantor agrees to remain bound under this guarantee notwithstanding any or all of the
following: amendment or modification of the closure or post-closure plan, amendment or
modification of the permit, the extension or reduction of the time of performance of
closure or post-closure, or any other modification or alteration of an obligation of the
owner or operator pursuant to 40 CFR Part 264 or 265.
9. Guarantor agrees to remain bound under this guarantee for so long as (owner or
operator) must comply with the applicable financial assurance requirements of subpart H of
40 CFR Parts 264 and 265 for the above-listed facilities, except that guarantor may cancel
this guarantee by sending notice by certified mail to the EPA Regional Administrator(s)
for the Region(s) in which the facility(ies) is (are) located and to (owner or operator),
such cancellation to become effective no earlier than 120 days after receipt of such
notice by both EPA and (owner or operator), as evidenced by the return receipts.
10. Guarantor agrees that if (owner or operator) fails to provide alternate financial
assurance as specified in subpart H of 40 CFR Part 264 or 265, as applicable, and obtain
written approval of such assurance from the EPA Regional Administrator(s) within 90 days
after a notice of cancellation by the guarantor is received by an EPA Regional
Administrator from guarantor, guarantor shall provide such alternate financial assurance
in the name of (owner or operator).
11. Guarantor expressly waives notice of acceptance of this guarantee by the EPA or by
(owner or operator). Guarantor also expressly waives notice of amendments or modifications
of the closure and/or post-closure plan and of amendments or modifications of the facility
permit(s).
I hereby certify that the wording of this guarantee is identical to the wording specified
in 40 CFR §264.151(h) as such regulations were constituted on the date first above
written.
Effective date:
(Name of guarantor)
(Authorized signature for guarantor)
(Name of person signing)
(Title of person signing)
Signature of witness or notary:
(2) A guarantee, as specified in §264.147(g) or §265.147(g) of this chapter, must be
worded as follows, except that instructions in brackets are to be replaced with the
relevant information and the brackets deleted:
Guarantee for Liability Coverage
Guarantee made this (date) by (name of guaranteeing entity), a business corporation
organized under the laws of (if incorporated within the United States insert "the
State of ---- '' and insert name of State; if incorporated outside the United States
insert the name of the country in which incorporated, the principal place of business
within the United States, and the name and address of the registered agent in the State of
the principal place of business), herein referred to as guarantor. This guarantee is made
on behalf of our subsidiary (owner or operator) of (business address), to any and all
third parties who have sustained or may sustain bodily injury or property damage caused by
(sudden and/or nonsudden) accidental occurrences arising from operation of the
facility(ies) covered by this guarantee.
Recitals
1. Guarantor meets or exceeds the financial test criteria and agrees to comply with the
reporting requirements for guarantors as specified in 40 CFR §264.147(g) and
§265.147(g).
2. (Owner or operator) owns or operates the following hazardous waste management
facility(ies) covered by this guarantee: (List for each facility: EPA Identification
Number, name, and address; and if guarantor is incorporated outside the United States list
the name and address of the guarantor's registered agent in each State.) This corporate
guarantee satisfies RCRA third-party liability requirements for (insert "sudden'' or
"nonsudden'' or "both sudden and nonsudden'') accidental occurrences in
above-named owner or operator facilities for coverage in the amount of (insert dollar
amount) for each occurrence and (insert dollar amount) annual aggregate.
3. For value received from (owner or operator), guarantor guarantees to any and all third
parties who have sustained or may sustain bodily injury or property damage caused by
(sudden and/or nonsudden) accidental occurrences arising from operations of the
facility(ies) covered by this guarantee that in the event that (owner or operator) fails
to satisfy a judgment or award based on a determination of liability for bodily injury or
property damage to third parties caused by (sudden and/or nonsudden) accidental
occurrences, arising from the operation of the above-named facilities, or fails to pay an
amount agreed to in settlement of a claim arising from or alleged to arise from such
injury or damage, the guarantor will satisfy such judgment(s), award(s) or settlement
agreement(s) up to the limits of coverage identified above.
4. Such obligation does not apply to any of the following:
(a) Bodily injury or property damage for which (insert owner or operator) is obligated to
pay damages by reason of the assumption of liability in a contract or agreement. This
exclusion does not apply to liability for damages that (insert owner or operator) would be
obligated to pay in the absence of the contract or agreement.
(b) Any obligation of (insert owner or operator) under a workers' compensation, disability
benefits, or unemployment compensation law or any similar law.
(c) Bodily injury to:
(1) An employee of (insert owner or operator) arising from, and in the course of,
employment by (insert owner or operator); or
(2) The spouse, child, parent, brother or sister of that employee as a consequence of, or
arising from, and in the course of employment by (insert owner or operator). This
exclusion applies:
(A) Whether (insert owner or operator) may be liable as an employer or in any other
capacity; and
(B) To any obligation to share damages with or repay another person who must pay damages
because of the injury to persons identified in paragraphs (1) and (2).
(d) Bodily injury or property damage arising out of the ownership, use, or entrustment to
others of any aircraft, motor vehicle or watercraft.
(e) Property damage to:
(1) Any property owned, rented, or occupied by (insert owner or operator);
(2) Premises that are sold, given away or abandoned by (insert owner or operator) if the
property damage arises out of any part of those premises;
(3) Property loaned to (insert owner or operator);
(4) Personal property in the care, custody or control of (insert owner or operator);
(5) That particular part of real property on which (insert owner or operator) or any
contractors or subcontractors working directly or indirectly on behalf of (insert owner or
operator) are performing operations, if the property damage arises out of these
operations.
5. Guarantor agrees that if, at the end of any fiscal year before termination of this
guarantee, the guarantor fails to meet the financial test criteria, guarantor shall send
within 90 days, by certified mail, notice to the EPA Regional Administrator(s) for the
Region(s) in which the facility(ies) is(are) located and to (owner or operator) that he
intends to provide alternate liability coverage as specified in 40 CFR §264.147 and
§265.147, as applicable, in the name of (owner or operator). Within 120 days after the
end of such fiscal year, the guarantor shall establish such liability coverage unless
(owner or operator) has done so.
6. The guarantor agrees to notify the EPA Regional Administrator by certified mail of a
voluntary or involuntary proceeding under Title 11 (Bankruptcy), U.S. Code, naming
guarantor as debtor, within 10 days after commencement of the proceeding.
7. Guarantor agrees that within 30 days after being notified by an EPA Regional
Administrator of a determination that guarantor no longer meets the financial test
criteria or that he is disallowed from continuing as a guarantor, he shall establish
alternate liability coverage as specified in 40 CFR §264.147 or §265.147 in the name of
(owner or operator), unless (owner or operator) has done so.
8. Guarantor reserves the right to modify this agreement to take into account amendment or
modification of the liability requirements set by 40 CFR §264.147 and §265.147, provided
that such modification shall become effective only if a Regional Administrator does not
disapprove the modification within 30 days of receipt of notification of the modification.
9. Guarantor agrees to remain bound under this guarantee for so long as (owner or
operator) must comply with the applicable requirements of 40 CFR §264.147 and §265.147
for the above-listed facility(ies), except as provided in paragraph 9 of this agreement.
10. (Insert the following language if the guarantor is (a) a direct or higher-tier
corporate parent, or (b) a firm whose parent corporation is also the parent corporation of
the owner or operator):
Guarantor may terminate this guarantee by sending notice by certified mail to the EPA
Regional Administrator(s) for the Region(s) in which the facility(ies) is(are) located and
to (owner or operator), provided that this guarantee may not be terminated unless and
until (the owner or operator) obtains, and the EPA Regional Administrator(s) approve(s),
alternate liability coverage complying with 40 CFR §264.147 and/or §265.147.
(Insert the following language if the guarantor is a firm qualifying as a guarantor due to
its "substantial business relationship'' with the owner or operator):
Guarantor may terminate this guarantee 120 days following receipt of notification, through
certified mail, by the EPA Regional Administrator(s) for the Region(s) in which the
facility(ies) is(are) located and by (the owner or operator).
11. Guarantor hereby expressly waives notice of acceptance of this guarantee by any party.
12. Guarantor agrees that this guarantee is in addition to and does not affect any other
responsibility or liability of the guarantor respect to the covered facilities.
13. The Guarantor shall satisfy a third-party liability claim only on receipt of one of
the following documents:
(a) Certification from the Principal and the third-party claimant(s) that the liability
claim should be paid. The certification must be worded as follows, except that
instructions in brackets are to be replaced with the relevant information and the brackets
deleted:
Certification of Valid Claim
The undersigned, as parties (insert Principal) and (insert name and address of third-party
claimant(s)), hereby certify that the claim of bodily injury and/or property damage caused
by a (sudden or nonsudden) accidental occurrence arising from operating (Principal's)
hazardous waste treatment, storage, or disposal facility should be paid in the amount of
$( ).
(Signatures)
Principal
(Notary) Date
(Signatures)
Claimant(s)
(Notary) Date
(b) A valid final court order establishing a judgment against the Principal for bodily
injury or property damage caused by sudden or nonsudden accidental occurrences arising
from the operation of the Principal's facility or group of facilities.
14. In the event of combination of this guarantee with another mechanism to meet liability
requirements, this guarantee will be considered (insert "primary'' or "excess'')
coverage.
I hereby certify that the wording of the guarantee is identical to the wording specified
in 40 CFR §264.151(h)(2) as such regulations were constituted on the date shown
immediately below.
Effective date:
(Name of guarantor)
(Authorized signature for guarantor)
(Name of person signing)
(Title of person signing)
Signature of witness of notary:
(i) A hazardous waste facility liability endorsement as required in §264.147 or §265.147
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
1. This endorsement certifies that the policy to which the endorsement is attached
provides liability insurance covering bodily injury and property damage in connection with
the insured's obligation to demonstrate financial responsibility under 40 CFR §264.147 or
§265.147. The coverage applies at (list EPA Identification Number, name, and address for
each facility) for (insert "sudden accidental occurrences,'' "nonsudden
accidental occurrences,'' or "sudden and nonsudden accidental occurrences''; if
coverage is for multiple facilities and the coverage is different for different
facilities, indicate which facilities are insured for sudden accidental occurrences, which
are insured for nonsudden accidental occurrences, and which are insured for both). The
limits of liability are (insert the dollar amount of the "each occurrence'' and
"annual aggregate'' limits of the Insurer's liability), exclusive of legal defense
costs.
2. The insurance afforded with respect to such occurrences is subject to all of the terms
and conditions of the policy; provided, however, that any provisions of the policy
inconsistent with subsections (a) through (e) of this Paragraph 2 are hereby amended to
conform with subsections (a) through (e):
(a) Bankruptcy or insolvency of the insured shall not relieve the Insurer of its
obligations under the policy to which this endorsement is attached.
(b) The Insurer is liable for the payment of amounts within any deductible applicable to
the policy, with a right of reimbursement by the insured for any such payment made by the
Insurer. This provision does not apply with respect to that amount of any deductible for
which coverage is demonstrated as specified in 40 CFR §264.147(f) or §265.147(f).
(c) Whenever requested by a Regional Administrator of the U.S. Environmental Protection
Agency (EPA), the Insurer agrees to furnish to the Regional Administrator a signed
duplicate original of the policy and all endorsements.
(d) Cancellation of this endorsement, whether by the Insurer, the insured, a parent
corporation providing insurance coverage for its subsidiary, or by a firm having an
insurable interest in and obtaining liability insurance on behalf of the owner or operator
of the hazardous waste management facility, will be effective only upon written notice and
only after the expiration of 60 days after a copy of such written notice is received by
the Regional Administrator(s) of the EPA Region(s) in which the facility(ies) is(are)
located.
(e) Any other termination of this endorsement will be effective only upon written notice
and only after the expiration of thirty (30) days after a copy of such written notice is
received by the Regional Administrator(s) of the EPA Region(s) in which the facility(ies)
is (are) located.
Attached to and forming part of policy No.
------ issued by (name of Insurer), herein called the Insurer, of (address of Insurer) to
(name of insured) of (address) this -- day of ------ , 19 -- . The effective date of said
policy is -- day of ------ , 19 -- .
I hereby certify that the wording of this endorsement is identical to the wording
specified in 40 CFR §264.151(i) as such regulation was constituted on the date first
above written, and that the Insurer is licensed to transact the business of insurance, or
eligible to provide as an excess or surplus lines insurer, in one or more States.
(Signature of Authorized Representative of Insurer)
(Type name)
(Title), Authorized Representative of (name of Insurer)
(Address of Representative)
(j) A certificate of liability insurance as required in §264.147 or §265.147 must be
worded as follows, except that the instructions in brackets are to be replaced with the
relevant information and the brackets deleted:
Hazardous Waste Facility Certificate of Liability Insurance
1. (Name of Insurer), (the "Insurer''), of (address of Insurer) hereby certifies that
it has issued liability insurance covering bodily injury and property damage to (name of
insured), (the "insured''), of (address of insured) in connection with the insured's
obligation to demonstrate financial responsibility under 40 CFR §264.147 or §265.147.
The coverage applies at (list EPA Identification Number, name, and address for each
facility) for (insert "sudden accidental occurrences,'' "nonsudden accidental
occurrences,'' or "sudden and nonsudden accidental occurrences''; if coverage is for
multiple facilities and the coverage is different for different facilities, indicate which
facilities are insured for sudden accidental occurrences, which are insured for nonsudden
accidental occurrences, and which are insured for both). The limits of liability are
(insert the dollar amount of the "each occurrence'' and "annual aggregate''
limits of the Insurer's liability), exclusive of legal defense costs. The coverage is
provided under policy number ------ , issued on (date). The effective date of said policy
is (date).
2. The Insurer further certifies the following with respect to the insurance described in
Paragraph 1:
(a) Bankruptcy or insolvency of the insured shall not relieve the Insurer of its
obligations under the policy.
(b) The Insurer is liable for the payment of amounts within any deductible applicable to
the policy, with a right of reimbursement by the insured for any such payment made by the
Insurer. This provision does not apply with respect to that amount of any deductible for
which coverage is demonstrated as specified in 40 CFR §264.147(f) or §265.147(f).
(c) Whenever requested by a Regional Administrator of the U.S. Environmental Protection
Agency (EPA), the Insurer agrees to furnish to the Regional Administrator a signed
duplicate original of the policy and all endorsements.
(d) Cancellation of the insurance, whether by the insurer, the insured, a parent
corporation providing insurance coverage for its subsidiary, or by a firm having an
insurable interest in and obtaining liability insurance on behalf of the owner or operator
of the hazardous waste management facility, will be effective only upon written notice and
only after the expiration of 60 days after a copy of such written notice is received by
the Regional Administrator(s) of the EPA Region(s) in which the facility(ies) is(are)
located.
(e) Any other termination of the insurance will be effective only upon written notice and
only after the expiration of thirty (30) days after a copy of such written notice is
received by the Regional Administrator(s) of the EPA Region(s) in which the facility(ies)
is (are) located.
I hereby certify that the wording of this instrument is identical to the wording specified
in 40 CFR §264.151(j) as such regulation was constituted on the date first above written,
and that the Insurer is licensed to transact the business of insurance, or eligible to
provide as an excess or surplus lines insurer, in one or more States.
(Signature of authorized representative of Insurer)
(Type name)
(Title), Authorized Representative of (name of Insurer)
(Address of Representative)