40 CFR Part 264 -- STANDARDS FOR
OWNERS AND OPERATORS OF HAZARDOUS WASTE TREATMENT, STORAGE, AND DISPOSAL FACILITIES
§264.147 Liability requirements.
(b) A surety bond guaranteeing payment into a trust fund, as specified in §264.143(b) or
§264.145(b) or §265.143(b) or §265.145(b) of this chapter, must be worded as follows,
except that instructions in brackets are to be replaced with the relevant information and
the brackets deleted:
Financial Guarantee Bond
Date bond executed:
Effective date:
Principal: (legal name and business address of owner or operator)
Type of Organization: (insert "individual,'' "joint venture,''
"partnership,'' or "corporation'')
State of incorporation:
Surety(ies): (name(s) and business address(es))
EPA Identification Number, name, address and closure and/or post-closure amount(s) for
each facility guaranteed by this bond (indicate closure and post-closure amounts
separately):
Total penal sum of
bond: $
Surety's bond number:
Know All Persons By These Presents, That we, the Principal and Surety(ies) hereto are
firmly bound to the U.S. Environmental Protection Agency (hereinafter called EPA), in the
above penal sum for the payment of which we bind ourselves, our heirs, executors,
administrators, successors, and assigns jointly and severally; provided that, where the
Surety(ies) are corporations acting as co-sureties, we, the Sureties, bind ourselves in
such sum "jointly and severally'' only for the purpose of allowing a joint action or
actions against any or all of us, and for all other purposes each Surety binds itself,
jointly and severally with the Principal, for the payment of such sum only as is set forth
opposite the name of such Surety, but if no limit of liability is indicated, the limit of
liability shall be the full amount of the penal sum.
Whereas said Principal is required, under the Resource Conservation and Recovery Act as
amended (RCRA), to have a permit or interim status in order to own or operate each
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 a condition of the permit 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 amount(s) within 15 days
after a final order to begin closure is issued by an EPA Regional Administrator or a U.S.
district court or other court of competent jurisdiction,
Or, if the Principal shall provide alternate financial assurance, as specified in subpart
H of 40 CFR Part 264 or 265, as applicable, and obtain the EPA Regional Administrator's
written approval of such assurance, within 90 days after the date notice of cancellation
is received by both the Principal and the EPA Regional Administrator(s) from the
Surety(ies), then this obligation shall be null and void; otherwise it is to remain in
full force and effect.
The Surety(ies) shall become liable on this bond obligation only when the Principal has
failed to fulfill the conditions described above. Upon notification by an EPA Regional
Administrator that the Principal has failed to perform as guaranteed by this bond, the
Surety(ies) shall place funds in the amount guaranteed for the facility(ies) into the
standby trust fund as directed by the EPA Regional Administrator.
The liability of the Surety(ies) shall not be discharged by any payment or succession of
payments hereunder, unless and until such payment or payments shall amount in the
aggregate to the penal sum of the bond, but in no event shall the obligation of the
Surety(ies) hereunder exceed the amount of said penal sum.
The Surety(ies) may cancel the bond by sending notice of cancellation by certified mail to
the Principal and to the EPA Regional Administrator(s) for the Region(s) in which the
facility(ies) is (are) located, provided, however, that cancellation shall not occur
during the 120 days beginning on the date of receipt of the notice of cancellation by both
the Principal and the EPA Regional Administrator(s), as evidenced by the return receipts.
The Principal may terminate this bond by sending written notice to the Surety(ies),
provided, however, that no such notice shall become effective until the Surety(ies)
receive(s) written authorization for termination of the bond by the EPA Regional
Administrator(s) of the EPA Region(s) in which the bonded facility(ies) is (are) located.
(The following paragraph is an optional rider that may be included but is not required.)
Principal and Surety(ies) hereby agree to adjust the penal sum of the bond yearly so that
it guarantees a new 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 EPA Regional Administrator(s).
In Witness Whereof, the Principal and Surety(ies) have executed this Financial Guarantee
Bond and have affixed their seals on the date set forth above.
The persons whose signatures appear below hereby certify that they are authorized to
execute this surety bond on behalf of the Principal and Surety(ies) and that the wording
of this surety bond is identical to the wording specified in 40 CFR §264.151(b) as such
regulations were constituted on the date this bond was executed.
Principal
(Signature(s))
(Name(s))
(Title(s))
(Corporate seal)
Corporate Surety(ies)
(Name and address)
State of incorporation:)
Liability limit: $
(Signature(s))
(Name(s) and title(s))
(Corporate seal)
(For every co-surety, provide signature(s), corporate seal, and other information in the
same manner as for Surety above.)
Bond premium: $ (c) A surety bond guaranteeing performance of closure and/or post-closure
care, as specified in §264.143(c) or §264.145(c), must be worded as follows, except that
the instructions in brackets are to be replaced with the relevant information and the
brackets deleted:
Performance Bond
Date bond executed:
Effective date:
Principal: (legal name and business address of owner or operator)
Type of organization: (insert "individual,'' "joint venture,''
"partnership,'' or "corporation'')
State of incorporation:
Surety(ies): (name(s) and business address(es))
EPA Identification Number, name, address, and closure and/or post-closure amount(s) for
each facility guaranteed by this bond (indicate closure and post-closure amounts
separately): ------
Total penal sum of bond: $
Surety's bond number:
Know All Persons By These Presents, That we, the Principal and Surety(ies) hereto are
firmly bound to the U.S. Environmental Protection Agency (hereinafter called EPA), in the
above penal sum for the payment of which we bind ourselves, our heirs, executors,
administrators, successors, and assigns jointly and severally; provided that, where the
Surety(ies) are corporations acting as co-sureties, we, the Sureties, bind ourselves in
such sum "jointly and severally'' only for the purpose of allowing a joint action or
actions against any or all of us, and for all other purposes each Surety binds itself,
jointly and severally with the Principal, for the payment of such sum only as is set forth
opposite the name of such Surety, but if no limit of liability is indicated, the limit of
liability shall be the full amount of the penal sum.
Whereas said Principal is required, under the Resource Conservation and Recovery Act as
amended (RCRA), to have a permit 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 a condition of the permit, 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 this obligation are such that if the Principal shall
faithfully perform closure, whenever required to do so, of each facility for which this
bond guarantees closure, in accordance with the closure plan and other requirements of the
permit as such plan and permit may be amended, pursuant to all applicable laws, statutes,
rules, and regulations, as such laws, statutes, rules, and regulations may be amended,
And, if the Principal shall faithfully perform post-closure care of each facility for
which this bond guarantees post-closure care, in accordance with the post-closure plan and
other requirements of the permit, as such plan and permit may be amended, pursuant to all
applicable laws, statutes, rules, and regulations, as such laws, statutes, rules, and
regulations may be amended,
Or, if the Principal shall provide alternate financial assurance as specified in subpart H
of 40 CFR Part 264, and obtain the EPA Regional Administrator's written approval of such
assurance, within 90 days after the date notice of cancellation is received by both the
Principal and the EPA Regional Administrator(s) from the Surety(ies), then this obligation
shall be null and void, otherwise it is to remain in full force and effect.
The Surety(ies) shall become liable on this bond obligation only when the Principal has
failed to fulfill the conditions described above.
Upon notification by an EPA Regional Administrator that the Principal has been found in
violation of the closure requirements of 40 CFR Part 264, for a facility for which this
bond guarantees performance of closure, the Surety(ies) shall either perform closure in
accordance with the closure plan and other permit requirements or place the closure amount
guaranteed for the facility into the standby trust fund as directed by the EPA Regional
Administrator.
Upon notification by an EPA Regional Administrator that the Principal has been found in
violation of the post-closure requirements of 40 CFR Part 264 for a facility for which
this bond guarantees performance of post-closure care, the Surety(ies) shall either
perform post-closure care in accordance with the post-closure plan and other permit
requirements or place the post-closure amount guaranteed for the facility into the standby
trust fund as directed by the EPA Regional Administrator.
Upon notification by an EPA Regional Administrator that the Principal has failed to
provide alternate financial assurance as specified in subpart H of 40 CFR Part 264, and
obtain written approval of such assurance from the EPA Regional Administrator(s) during
the 90 days following receipt by both the Principal and the EPA Regional Administrator(s)
of a notice of cancellation of the bond, the Surety(ies) shall place funds in the amount
guaranteed for the facility(ies) into the standby trust fund as directed by the EPA
Regional Administrator.
The surety(ies) hereby waive(s) notification of amendments to closure plans, permits,
applicable laws, statutes, rules, and regulations and agrees that no such amendment shall
in any way alleviate its (their) obligation on this bond.
The liability of the Surety(ies) shall not be discharged by any payment or succession of
payments hereunder, unless and until such payment or payments shall amount in the
aggregate to the penal sum of the bond, but in no event shall the obligation of the
Surety(ies) hereunder exceed the amount of said penal sum.
The Surety(ies) may cancel the bond by sending notice of cancellation by certified mail to
the owner or operator and to the EPA Regional Administrator(s) for the Region(s) in which
the facility(ies) is (are) located, provided, however, that cancellation shall not occur
during the 120 days beginning on the date of receipt of the notice of cancellation by both
the Principal and the EPA Regional Administrator(s), as evidenced by the return receipts.
The principal may terminate this bond by sending written notice to the Surety(ies),
provided, however, that no such notice shall become effective until the Surety(ies)
receive(s) written authorization for termination of the bond by the EPA Regional
Administrator(s) of the EPA Region(s) in which the bonded facility(ies) is (are) located.
(The following paragraph is an optional rider that may be included but is not required.)
Principal and Surety(ies) hereby agree to adjust the penal sum of the bond yearly so that
it guarantees a new 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 EPA Regional Administrator(s).
In Witness Whereof, The Principal and Surety(ies) have executed this Performance Bond and
have affixed their seals on the date set forth above.
The persons whose signatures appear below hereby certify that they are authorized to
execute this surety bond on behalf of the Principal and Surety(ies) and that the wording
of this surety bond is identical to the wording specified in 40 CFR §264.151(c) as such
regulation was 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: $
(d) A letter of credit, as specified in §264.143(d) or §264.145(d) or §265.143(c) or
§265.145(c) of this chapter, must be worded as follows, except that instructions in
brackets are to be replaced with the relevant information and the brackets deleted:
Irrevocable Standby Letter of Credit
Regional Administrator(s)
Region(s)
U.S. Environmental Protection Agency
Dear Sir or Madam: We hereby establish our Irrevocable Standby Letter of Credit No. ----
in your favor, at the request and for the account of (owner's or operator's name and
address) up to the aggregate amount of (in words) U.S. dollars $ ---- , available upon
presentation (insert, if more than one Regional Administrator is a beneficiary, "by
any one of you'') of
(1) your sight draft, bearing reference to this letter of credit No. ---- , and
(2) your signed statement reading as follows: "I certify that the amount of the draft
is payable pursuant to regulations issued under authority of the Resource Conservation and
Recovery Act of 1976 as amended.''
This letter of credit is effective as of (date) and shall expire on (date at least 1 year
later), but such expiration date shall be automatically extended for a period of (at least
1 year) on (date) and on each successive expiration date, unless, at least 120 days before
the current expiration date, we notify both you and (owner's or operator's name) by
certified mail that we have decided not to extend this letter of credit beyond the current
expiration date. In the event you are so notified, any unused portion of the credit shall
be available upon presentation of your sight draft for 120 days after the date of receipt
by both you and (owner's or operator's name), as shown on the signed return receipts.
Whenever this letter of credit is drawn on under and in compliance with the terms of this
credit, we shall duly honor such draft upon presentation to us, and we shall deposit the
amount of the draft directly into the standby trust fund of (owner's or operator's name)
in accordance with your instructions.
We certify that the wording of this letter of credit is identical to the wording specified
in 40 CFR §264.151(d) as such regulations were constituted on the date shown immediately
below.
(Signature(s) and title(s) of official(s) of issuing institution) (Date)
This credit is subject to (insert "the most recent edition of the Uniform Customs and
Practice for Documentary Credits, published by the International Chamber of Commerce,'' or
"the Uniform Commercial Code'').
(e) A certificate of insurance, as specified in §264.143(e) or §264.145(e) or
§265.143(d) or §265.145(d) of this chapter, must be worded as follows, except that
instructions in brackets are to be replaced with the relevant information and the brackets
deleted:
Certificate of Insurance for Closure or Post-Closure Care
Name and Address of Insurer
(herein called the "Insurer''):
Name and Address of Insured
(herein called the "Insured''):
Facilities Covered: (List for each facility: The EPA Identification Number, name, address,
and the amount of insurance for closure and/or the amount for post-closure care (these
amounts for all facilities covered must total the face amount shown below).)
Face Amount:
Policy Number:
Effective Date:
The Insurer hereby certifies that it has issued to the Insured the policy of insurance
identified above to provide financial assurance for (insert "closure'' or
"closure and post-closure care'' or "post-closure care'') for the facilities
identified above. The Insurer further warrants that such policy conforms in all respects
with the requirements of 40 CFR §264.143(e), §264.145(e), §265.143(d), and
§265.145(d), as applicable and as such regulations were constituted on the date shown
immediately below. It is agreed that any provision of the policy inconsistent with such
regulations is hereby amended to eliminate such inconsistency.
Whenever requested by the EPA Regional Administrator(s) of the U.S. Environmental
Protection Agency, the Insurer agrees to furnish to EPA Regional Administrator(s) a
duplicate original of the policy listed above, including all endorsements thereon.
I hereby certify that the wording of this certificate is identical to the wording
specified in 40 CFR §264.151(e) as such regulations were constituted on the date shown
immediately below.
(Authorized signature for Insurer)
(Name of person signing)
(Title of person signing)
Signature of witness or notary:
(Date)
(f) A letter from the chief financial officer, 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:
Letter From Chief Financial Officer
(Address to Regional Administrator of every Region in which facilities for which financial
responsibility is to be demonstrated through the financial test are located.)
I am the chief financial officer of (name and address of firm). This letter is in support
of this firm's use of the financial test to demonstrate financial assurance, as specified
in subpart H of 40 CFR Parts 264 and 265.
(Fill out the following four 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.)
1. This firm is the owner or operator of the following facilities for which financial
assurance for closure or post-closure care is demonstrated through the financial test
specified in subpart H of 40 CFR Parts 264 and 265. The current closure and/or
post-closure cost estimates covered by the test are shown for each facility:
-------- .
2. This firm guarantees, through the corporate guarantee specified in subpart H of 40 CFR
Parts 264 and 265, the closure or post-closure care of the following facilities owned or
operated by subsidiaries of this firm. The current cost estimates for the closure or
post-closure care so guaranteed are shown for each facility:
-------- .
3. In States where EPA is not administering the financial requirements of subpart H of 40
CFR Part 264 or 265, this firm, as owner or operator or guarantor, is demonstrating
financial assurance for the closure or post-closure care of the following facilities
through the use of a test equivalent or substantially equivalent to the financial test
specified in subpart H of 40 CFR Parts 264 and 265. The current closure and/or
post-closure cost estimates covered by such a test are shown for each facility:
-------- .
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 a State through the financial test
or any other financial assurance mechanism specified in subpart H of 40 CFR Parts 264 and
265 or equivalent or substantially equivalent State mechanisms. The current closure and/or
post-closure cost estimates not covered by such financial assurance are shown for each
facility: -------- .
This firm (insert "is required'' or "is not required'') to file a Form 10K with
the Securities and Exchange Commission (SEC) for the latest fiscal year.
The fiscal year of this firm ends on (month, day). The figures for the following items
marked with an asterisk are derived from this firm's independently audited, year-end
financial statements for the latest completed fiscal year, ended (date).
(Fill in Alternative I if the criteria of paragraph (f)(1)(i) of §264.143 or §264.145,
or of paragraph (e)(1)(i) of §265.143 or §265.145 of this chapter are used. Fill in
Alternative II if the criteria of paragraph (f)(1)(ii) of §264.143 or §264.145, or of
paragraph (e)(1)(ii) of §265.143 or §265.145 of this chapter are used.)Alternative I
TABLE/GRAPH OMITTED
TABLE/GRAPH OMITTED
Alternative II
TABLE/GRAPH OMITTED
TABLE/GRAPH OMITTED
I hereby certify that the wording of this letter is identical to the wording specified in
40 CFR §264.151(f) as such regulations were constituted on the date shown immediately
below.
(Signature)
(Name)
(Title)
(Date)
5. This firm is the owner or operator of the following UIC facilities for which financial
assurance for plugging and abandonment is required under Part 144. The current closure
cost estimates as required by 40 CFR §144.62 are shown for each facility: