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D.C. Municipal Regulations (Last Updated: September 13, 2017) |
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Title 20. ENVIRONMENT |
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Chapter 20-67. UNDERGROUND STORAGE TANKS - FINANCIAL RESPONSIBILITY |
Section 20-6715. BANKRUPTCY OR INCAPACITY
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6715.1Within ten (10) days after commencement of a voluntary or involuntary proceeding under Title 11 of the United States Code (Bankruptcy), naming an owner as debtor, the owner shall notify the Director by certified mail (return receipt requested) of the commencement of the proceedings and submit to the Director the appropriate forms listed in §§ 6702.4 through 6702.7, documenting current financial responsibility.
6715.2Within ten (10) days after commencement of a voluntary or involuntary proceeding under Title 11 of the United States Code (Bankruptcy), naming a guarantor providing financial assurance as debtor, the guarantor shall notify the owner by certified mail (return receipt requested) of the commencement of proceedings, as required under the terms of the guarantee specified in § 6706 of this chapter.
6715.3An owner who obtains financial assurances by a mechanism other than the financial test of self-insurance shall be deemed to be without the required financial assurance in the event of a bankruptcy or incapacity of its provider of financial assurance, or a suspension or revocation of the authority of the provider of financial assurance to issue a guarantee, insurance policy, risk retention group coverage policy, surety bond, or letter of credit.
6715.4An owner shall obtain alternate financial assurance, in accordance with the requirement of this chapter, within thirty (30) days after receiving notice of the bankruptcy or incapacity of its provider of financial assurance, or the suspension or revocation of the authority of its provider of financial assurance to issue a guarantee, insurance policy, risk retention group coverage policy, surety bond, or letter of credit.
6715.5If an owner does not obtain alternate coverage within thirty (30) days after notification of bankruptcy or incapacity, as provided in this section, the owner shall notify the Director.
APPENDIX 67-1CERTIFICATION OF FINANCIAL RESPONSIBILITY
[owner] hereby certifies that is in compliance with the financial responsibility requirements of Chapter 67.
The financial assurance mechanism(s) used to demonstrate financial responsibility under Chapter 67 of this title are as follows:
[Type of mechanisms]
__________________________________________________________________________________
[Name of issuer]
_________________________________________________________________________________
[Mechanism number (if applicable)]
_________________________________________________________________________________
[Amount of coverage]
_________________________________________________________________________________
[Effective period of coverage]
_________________________________________________________________________________
Whether mechanism covers "taking correction action" or "compensating third parties for bodily injury and property damage caused by" either "sudden accidental releases" or "nonsudden accidental releases" or "accidental releases."
_____________________________________________________________________________________
__________________________________________________________________________________________________________________________________________________________________________
[Type of mechanisms]
_________________________________________________________________________________
[Name of issuer]
_________________________________________________________________________________
[Mechanism number (if applicable)]
_________________________________________________________________________________
[Amount of coverage]
_________________________________________________________________________________
[Effective period of coverage]
_________________________________________________________________________________
Whether mechanism covers "taking correction action" or "compensating third parties for bodily injury and property damage caused by" either "sudden accidental releases" or "nonsudden accidental releases" or "accidental releases."
_____________________________________________________________________________________
_____________________________________________________________________________________
_____________________________________________________________________________________
[Signature of owner]
__________________________________________________________________________________
[Name of owner]
_________________________________________________________________________________
[Title] ___________________________________________________________________________________
[Date] ___________________________________________________________________________________
[Signature of witness or notary]
_________________________________________________________________________________
[Name of witness or notary]
_________________________________________________________________________________
[Date] ___________________________________________________________________________________
The owner must update this certification whenever the financial assurance mechanism(s) used to demonstrate financial responsibility change(s).
APPENDIX 67-2FINANCIAL TEST OF SELF INSURANCE LETTER FROM CHIEF FINANCIAL OFFICER
I am the chief financial officer of____________________[name and address of the owner or guarantor]. This letter is in support of the use of_______________["the financial test of self-insurance" and/or guarantee"] to demonstrate financial responsibility for ______________["taking corrective action" and/or compensating third parties for bodily injury and property damage"] caused by ___________["sudden accidental releases" and/or "nonsudden accidental releases"] in the amount of at least_________________________[dollar amount] per occurrence and ________________ [dollar amount] annual aggregate arising operating (an) underground storage tank(s). Underground storage tanks at the following facilities are assured by this financial test by this ________________________ ["owner" and/or "guarantor"].
UST Facility I.D.
Number of UST(s)
Name/Address of
Number
UST(s) Facility
_____________
_______________
______________
_____________
_______________
______________
_____________
_______________
______________
_____________
_______________
______________
_____________
_______________
______________
[List for each facility: the name and address of the facility where tanks assured by this financial test are located, and whether tanks are assured by this financial test. If separate mechanisms or combinations of mechanisms are being used to assure any of the tanks at this facility, list each tank assured by this financial test by the tank identification number provided in the notification submitted pursuant to § 5600 of this subtitle.]
A __________[financial test and/or guarantee] is also used by _____________[owner or guarantor] to demonstrate evidence of financial responsibility in the following amounts under other EPA regulations or state programs authorized by EPA under 40 C.F.R. Parts 145 and 271:
EPA Regulation Amount
Closure (§§ 264.143 and 265.143)
______
Post-Closure Care (§§ 264.145 and 265.145)
______
Liability Coverage (§§ 264.147 and 265.147)
______
Corrective Action (§ 264.101(b))
______
Plugging and Abandonment (§ 144.63)
______
Closure
______
Post-Closure Care
______
Liability Coverage
______
Corrective Action
______
Plugging and Abandonment
______
Total
______
This ________________[owner or guarantor]has not received an adverse opinion, a disclaimer of opinion, or a "going concern" qualification from an independent auditor on his or her financial statements for the latest completed fiscal year.
[Fill in the information for Alternative I if the criteria of § 6704 are being used to demonstrate compliance with the financial test requirements. Fill in the information for Alternative II if the criteria of § 6705 are being used to demonstrate compliance with the financial test requirements.]
Alternative I
1.
Amount of annual UST aggregate coverage being
assured by a financial test, and/or guarantee.
$ ___________
2.
Amount of corrective action, closure and post-closure care
costs, liability coverage, and plugging and abandonment costs
covered by a financial test, and/or guarantee.
$ ___________
3.
Sum of lines 1 and 2 ___
$ ___________
4.
Total tangible assets___
$ ___________
5.
Total liabilities [if any of the amount reported
on line 3 is included in total liabilities, you
may deduct that amount from this line and add
that amount to line 6] __________________
$ ___________
6.
Tangible net worth [subtract line 5 from line 4].
$ ___________
Yes
No
7.
Is line 6 at least ten million dollars ($ 10,000,000)?
____ ____
8.
Is line 6 at least 10 times line 3?
____ ____
9.
Have financial statements for the latest fiscal
year been filed with the Securities and Exchange
____ ____
Commission?
10.
Have financial statements for the latest fiscal
year been filed with the Energy Information
Administration?
____ ____
11.
Have financial statements for the latest fiscal year been
filed with the Rural Electrification Administration?
____ ____
12.
Has financial information been provided to Dun and
Bradstreet, and has Dun and Bradstreet provided
a financial strength rating of 4A or 5A? [Answer "Yes"
only if both criteria have been met.]
____ ____
13.
Has financial information been provided to the
Board of Governors of the Federal Reserve System,
the Comptroller of the Currency or the Federal
Deposit Insurance Corporation?
____ ____
Alternative II
1.
Amount of annual UST aggregate coverage being
assured by a financial test, and/or guarantee.
$______
2.
Amount of corrective action, closure and
post-closure care cost, liability coverage,
and plugging and abandonment costs covered
by a financial test or guarantee.
$______
3.
Sum of lines 1 and 2 ________________
$______
4.
Total tangible assets ________________
$______
5.
Total liabilities [if any of the amount
reported on line 3 is included in total
liabilities, you may deduct that amount
from this line and add that amount to
line 6]_________________________
$______
6.
Tangible net worth [subtract line 5 from line 4]
$______
7.
Total assets in the U.S. [required only if less
than ninety percent (90%) of assets are located
in the U.S.] ___________________________
$______
Yes
No
8.
Is line 6 at least ten million dollars ($ 10,000,000)?
_____ _____
9.
Is line 6 at least six (6) times line 3?
_____ _____
10.
Are at least ninety percent (90%) of assets located
in the U.S.? [If "No," complete line 11]
_____ _____
11.
Is line 7 at least six (6) times line 3?
[Fill in either lines 12-15 or lines 16-18:]
_____ _____
12.
Current Assets ____________________
$ ______________
13.
Current Liabilities__________________
$ ______________
14.
Networking capital [subtract line 13
from line 12]
$ ______________
Yes
No
15.
Is line 14 at least 6 times line 3?
_____ ______
16.
Current bond rating of most recent bond issue.
_____ ______
17.
Name of rating service __________________________________________________________
18.
Date of maturity of bond________________________________________________________
Yes
No
19.
Have financial statements for the latest fiscal year been filed
with the SEC, the Energy Information Administration, the Rural
Electrification Administration, the Board of Governors of the
Federal fication Administration, the Board of Governors of the
Federal Reserve System, the Comptroller of the Currency or the
Federal Deposit Insurance Corporation?
_____
______
[If "No," please attach a report from an independent certified public
accountant certifying that there are no material differences between
the data as reported in lines 4-18 above and the financial statements
for the latest fiscal year.]
[For both Alternative I and Alternative II complete the certification
with this statement.]
I hereby certify that the wording of this letter is identical to the wording specified in Appendix 67-2 to the UST Regulations, DCMR Title 20, Environment, as such regulations were constituted on the date shown immediately below.
[Signature]___________________________________________________________________________
[Name]_____________________________________________________________________________
[Title]______________________________________________________________________________
[Date]______________________________________________________________________________
APPENDIX 67-3GUARANTEE
Guarantee made this_________ [date] by ________[name of guaranteeing entity], a business entity organized under the laws of the District of Columbia, herein referred to as guarantor, to the Department of Health (DOH) and to any and all third parties, and obligees, on behalf of___________[owner] of __________________________________[business address].
RECITALS:
(1)Guarantor meets or exceeds the financial test criteria of §§ 6703 or 6704 and § 6705 and agrees to comply with the requirements for guarantors as specified in § 6706.4.
(2) ________________[owner] owns the following underground storage tank(s) covered by this guarantee:
UST Facility I.D.
Number of UST(s)
Name/Address of
Number
UST(s) Facility
____________
______________
______________
____________
______________
______________
____________
______________
______________
[List the number of tanks at each facility and the name(s) and address(es) of the facility(ies) where the tanks are located. If more than one instrument is used to assure different tanks at any one facility, for each tank covered by this instrument, list the tank identification number provided in the notification submitted pursuant to § 5600, and the name and address of the facility.]
This guarantee satisfies Chapter 67 requirements for assuring funding for ______________ ["taking corrective action" and/or "compensating third parties for bodily injury and property damage caused by either "sudden accidental releases" or "nonsudden accidental releases" or "accidental releases"; if coverage is different for different operating tanks or locations, indicate the type of coverage applicable to each tank or location] arising from the above-identified underground storage tank(s) in the amount of ___________ [dollar amount] per occurrence and _______________[dollar amount] annual aggregate.
(3)_____________________________[Insert appropriate phrase: "On behalf of our subsidiary" (if guarantor is corporate parent of the owner); "On behalf of our affiliate" (if guarantor is a related firm of the owner); or "Incident to our business relationship with" (if guarantor is providing the guarantee as an incident to a substantial business relationship with owner] ________________[owner] guarantor guarantees to the DOH and to any and all third parties that:
In the event that ________________ [owner] fails to provide alternate coverage within sixty (60) days after receipt of a notice of cancellation of this guarantee and the Director has determined or suspects that a release has occurred at an underground storage tank covered by this guarantee, the guarantor, upon instructions from the Director, shall fund a standby trust fund in accordance with the provisions of § 6712, in an amount not to exceed the coverage limits specified above.
In the event that the Director determines that ________________[owner] has failed to perform corrective action for releases arising out of the operation of the above-identified tank(s) in accordance with Chapter 62, the guarantor upon written instructions from the Director shall fund a standby trust fund in accordance with the provisions of § 6712 in an amount not to exceed the coverage limits specified above.
If __________________ [owner] 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" or "nonsudden"] accidental releases arising from the operation of the above identified tank(s), 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, upon written instructions from the Director, shall fund a standby trust fund in accordance with the provisions of § 6712 to satisfy such judgment(s), award(s), or settlement agreement(s) up to the limits of coverage specified above.
(4)Guarantor agrees that if, at the end of any fiscal year before cancellation of this guarantee, the guarantor fails to meet the financial test criteria of §§ 6703 or 6704 and § 6705, guarantor shall send within one hundred twenty (120) days of such failure, by certified mail notice to owner. The guarantee will terminate one hundred twenty (120) days from the date of receipt of the notice by __________________[owner], as evidenced by the return receipt.
(5)Guarantor agrees to notify _________________[owner] by certified mail of a voluntary or involuntary proceeding under Title II (Bankruptcy), U.S. Code, naming guarantor as debtor, within ten (10) days after commencement of the proceeding.
(6)Guarantor agrees to remain bound under this guarantee notwithstanding any modification or alteration of any obligation of ________________ [owner] pursuant to Chapter 67 of this title.
(7)Guarantor agrees to remain bound under this guarantee for so long as ______________ [owner] must comply with the applicable financial responsibility requirements of the regulations under Chapter 67 for the above-identified tank(s), except that guarantor may cancel this guarantee by sending notice by certified mail to _____________[owner], such cancellation to become effective no earlier than one hundred twenty (120) days after receipt of such notice by ____________[owner]as evidenced by the return receipt.
(8)The guarantor's obligation does not apply to any of the following:
(a)Any obligation of __________[owner] under a workers' compensation, disability benefits, or unemployment compensation law or other similar law;
(b)Bodily injury to an employee of __________[owner] arising from, and in the course of, employment by ___________[owner];
(c)Bodily injury or property damage arising from the ownership, maintenance, use, or entrustment to others of any aircraft, motor vehicle, or watercraft;
(d)Property damage to any property owned, rented, loaned to, in the care of, custody, or control of, or occupied by ______________[owner] that is not the direct result of a release from a petroleum underground storage tank; and
(e)Bodily damage or property damage for which _______________[owner]is obligated to pay damages by reason of the assumption of liability in a contract or agreement other than a contract or agreement entered into to meet the requirements of §§ 6700.10 through 6700.17; and
(9)Guarantor expressly waives notice of acceptance of this guarantee by the Department, by any or all third parties, or by _______________[owner].
I hereby certify that the wording of this guaranteed is identical to the wording specified in Appendix 67-3 as such regulations were constituted on the effective date shown immediately below.
Effective date ______________________________________________
Name of guarantor __________________________________________
Authorized signature for guarantor _____________________________
Name of person signing ______________________________________
Title of person signing _______________________________________
Signature of witness or notary _________________________________
APPENDIX 67-4CERTIFICATE OF INSURANCE
Name and address of each covered location:
_______________________________________________________________________________
__________________________________________________________________________________
___________________________________________________________________________________
Policy number:
_____________________________________________________________________________
Endorsement (if applicable):
_____________________________________________________________________________
Period of coverage: [current policy period]
_____________________________________________________________________________
Name of [Insurer or Risk Retention Group]:
______________________________________________________________________________
___________________________________________________________________________________
Address of Insurer or Risk Retention Group]:
______________________________________________________________________________
___________________________________________________________________________________
Name of insured:
______________________________________________________________________________
Address of insured:
______________________________________________________________________________
CERTIFICATION:
(1) ______________________[name of Insurer or Risk Retention Group], the "Insurer" or "Group" as identified above, hereby certifies that it has issued liability insurance covering the following underground storage tanks:
UST Facility I.D.
Number of UST(s)
Name/Address of
Number
UST Facility
_____________
_______________
______________
_____________
_______________
______________
_____________
_______________
______________
[List the number of tanks at each facility and the name(s) and address(es) of the facility(ies) where the tanks are located. If more than one instrument is used to assure different tanks at any one facility, for each tank covered by this instrument, list the tank identification number provided in the notification submitted pursuant to § 5600 of this subtitle and the name and address of the facility.] for _______________________[insert: "taking corrective action" and/or "compensating third parties for bodily injury and property damage caused by" either "sudden accidental releases" or "nonsudden accidental releases" or "accidental releases" in accordance with and subject to the limits of liability, exclusions, conditions, and other terms of the policy; if coverage is different for different tanks or arising from operating the locations, indicate the type of coverage applicable to each tank or location] underground storage tank(s) identified above.
The limits of liability are ______________[insert the dollar amount of the "each occurrence" and "annual aggregate" limits of the Insurer's or Group's liability; if the amount of coverage is different for different types of coverage or for different underground storage tanks or locations, indicate the amount of coverage for each type of coverage and/or for each underground storage tank or location], exclusive of legal defense costs which are subject to a separate limits under the policy.
This coverage is provided under___________________[policy number], date of said policy is_________________[date].
(2)The "Insurer" or "Group" 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 or Group] of its obligations under the policy to which this certificate applies.
(b)The _______________________[Insurer or Group] is liable for the payment of amounts within any deductible applicable to the policy to the provider of corrective action or a damaged third party, with a right of reimbursement by the insured from any such payment made by the ________________[Insurer or Group]. This provision does not apply with respect to that amount of any deductible for which coverage is demonstrated under another mechanism or combination of mechanisms as specified in §§ 6703 through 6710.
(c)Whenever requested by the Director, the _____________[Insurer or Group] agrees to furnish to the Director a signed duplicate original of the policy and all endorsements.
(d)Cancellation or any other termination of the insurance by the _______________ [Insurer or Group] except for non-payment of premium or misrepresentation by the insured, will be effective only upon written notice and only after the expiration of sixty (60) days after a copy of such written notice is received by the insured. Cancellation for non-payment of premium or misrepresentation by the insured will be effective only upon written notice and only after expiration of a minimum of ten (10) days after a copy of such written notice is received by the insured. Cancellation for non-payment of premium or misrepresentation by the insured will be effective only upon written notice and only after expiration of a minimum of ten (10) days after a copy of such written notice is received by the insured.
Insert for claims-made policies:
(e)The insurance covers claims otherwise covered by the policy that are reported to the ___________________[Insurer or Group]within six (6) months of the effective date of cancellation or non-renewal of the policy except where the new or renewed policy has the same retroactive date or a retroactive date earlier than that of the prior policy, and which arise out of any covered occurrence that commenced after the policy retroactive date, if applicable, and prior to such policy renewal or termination date. Claims reported during such extended reporting period are subject to the terms, conditions, limits, including limits of liability, and exclusions of the policy.
I hereby certify that the wording of this instrument is identical to the wording in Appendix 67-4 of the UST Regulations, (Title 20 DCMR, Environment, and that the ____________[Insurer or Group] is ______________["licensed to transact the business of insurance, or eligible to provide insurance as an excess or surplus lines insurer, in one or more states"]
[Signature of Authorized Representative of _______________________ Insurer]
[Name of person signing] _____________________________________________________________
[Title of person signing] _____________________________________________________________
Authorized representative of __________________________________[Insurer or Risk Retention Group]
Address of Representative] __________________________________________________________
APPENDIX 67-5ENDORSEMENT
Name and address of each covered location:
________________________________________________________________________________
______________________________________________________________________________________
______________________________________________________________________________________
Policy number:
________________________________________________________________________________
Period of coverage: [current policy period]
________________________________________________________________________________
Name and address of [Insurer or Risk Retention Group]:
______________________________________________________________________________________
______________________________________________________________________________________________________________________________________________________________________
Name of insured:
___________________________________________________________________________
Address of insured:
_________________________________________________________________________
ENDORSEMENT:
(1)This endorsement certifies that the policy to which the endorsement is attached provides liability insurance covering the following underground storage tanks:
UST Facility I.D.
Number of UST(s)
Name/Address of
Number
UST Facility
______________
________________
_______________
______________
________________
_______________
______________
________________
_______________
[List the number of tanks at each facility and the name(s) and address(es) of the facility(ies) where the tanks are located. If more than one instrument is used to assure different tanks at any one facility, for each tank covered by this instrument, list the tank identification number provided in the notification submitted pursuant to § 5600 of this subtitle and the name and address of the facility.]
For ______________[insert: "taking corrective action" and/or "compensating third parties for bodily injury and property damage caused by" either "sudden accidental releases" or "nonsudden accidental releases" or "accidental releases" in accordance with and subject to the limits of liability, exclusions, conditions, and other terms of the policy; if coverage is different for different tanks or locations, indicate the type of coverage applicable to each tank or arising from operating the underground storage tank(s) location] identified above.
The limits of liability are _______________________________ [Insert the dollar amount of the "each occurrence" and "annual aggregate" limits of the Insurer's or Group's liability; if the amount of coverage is different for different types of coverage or for different underground storage tanks or locations, indicate the amount of coverage for each type of coverage and/or for each UST or location exclusive of legal defense costs which are subject to a separate limit under the policy]. This coverage is provided under ____________[policy number]. The effective date of said policy is __________[date].
(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 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 or Group] of its obligations under the policy to which this endorsement is attached;
(b)The ____________________[Insurer or Group]is liable for the payment of amounts within any deductible applicable to the policy to the provider of corrective action or a damage third-party, with a right of reimbursement by the insured for any such payment made by the ____________[Insurer or Group].
This provision does not apply with respect to that amount of any deductible for which coverage is demonstrated under another mechanism or combination of mechanisms as specified in § 6703 through § 6710 of this title;
(c)Whenever requested by the Director _________________[Insurer or Group] agrees to furnish to the Director a signed duplicate original of the policy and all endorsements;
(d)Cancellation or any other termination of the insurance by the _____________ [Insurer or Group] except for non-payment of premium or misrepresentation by the insured, will be effective only upon written notice and only after the expiration of sixty (60) days after a copy of such written notice is received by the insured. Cancellation for non-payment of premium or misrepresentation by the insured will be effective only upon written notice and only after expiration of a minimum of ten (10) days after a copy of such written notice is received by the insured ______________[Insert for claims made policies]; and
(e)The insurance covers claims otherwise covered by the policy that are reported to the ____________________[Insurer or Group] within six (6) months of the effective date of the cancellation or non-renewal of the policy except where the new or renewed policy has the same retroactive date or a retroactive date earlier than that of the prior policy, and which arise out of any covered occurrence that commenced after the policy retroactive date, if applicable, and prior to such policy renewal or termination date. Claims reported during such extended reporting period are subject to the terms, conditions, limits, including limits of liability, and exclusions of the policy].
I hereby certify that the wording of this instrument is identical to the wording in Appendix 67-5 to the UST Regulations (Title 20 DCMR, Environment) and that the ______________[Insurer or Group]is _____________[licensed to transact the business of insurance or eligible to provide insurance as excess or surplus lines insurer in one or are states"].
[Signature of Authorized Representative of Insurer or Risk Retention Group]
_________________________________________________________________________________
[Name of person signing]
___________________________________________________________________________________
[Title of person signing]
_____________________________________________________________________
Authorized Representative of ___________________________________[Insurer or Risk Retention Group]
[Address of Representative]
_________________________________________________________________________________
________________________________________________________________________________
APPENDIX 67-6PERFORMANCE BOND
Date bond executed: _________________________________________________________________
Period of coverage: _________________________________________________________________
Principal: [legal name and business address of owner] ______________________________________
Type or Organization: [insert "individual," "joint venture," "partnership," or "corporation"] _________
State of incorporation (if applicable): __________________________________________________
Surety(ies): [name(s) and business address(es)] ___________________________________________
SCOPE OF COVERAGE:
UST Facility I.D.
Number of UST(s)
Name/Address of
Number
UST(s) Facility
___
___
___
___
___
___
___
___
___
___
___
___
___
___
___
[List the number of tanks at each facility and the name(s) and address(es) of the facility(ies) where the tanks are located. If more than one instrument is used to assure different tanks at any one facility, for each tank covered by this instrument, list the tank identification number provided in the notification submitted pursuant to § 5600 of this title, and the name and address of the facility as above.]
List the coverage guaranteed by the bond: _______________________________________________
["Taking corrective action" or "compensating third parties for bodily injury and property damage caused by" either "sudden accidental releases" or "nonsudden accidental releases" or "accidental releases" arising from operating the underground storage tank.]
Penal Sums of Bond:
Per-occurrence $ ___________________________________________________________________
Annual aggregate $ _________________________________________________________________
Surety's bond number: ______________________________________________________________
Know All Persons by These Presents, that we, the Principal and Surety(ies), hereto are firmly bound to the District of Columbia Department of Health (DOH) in the above penal sums 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 sums 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 sums 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 sums.
Whereas said Principal is required under Subtitle I of the Resource Conservation and Recovery Act (RCRA), as amended, to provide financial assurance for ____________________________________
["Taking corrective action" and/or "compensating third parties for bodily injury and property damage caused by" either "sudden accidental releases" or "nonsudden accidental releases" or "accidental releases"; if coverage is different for different tanks or locations, indicate the type of coverage applicable to each tank or location] arising from operating the underground storage tanks identified above; 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 ________________________["Take corrective action, in accordance with Chapter 62 of the UST Regulations and the Director's instructions for," and/or "compensate injured third parties for bodily injury and property damage causes by" either "sudden" or "nonsudden" or "sudden and nonsudden"] accidental releases arising from operating the tanks(s) identified above, or if the Principal shall provide alternative financial assurance, as specified in Chapter 67 of the UST Regulations, within one hundred twenty (120) days after the date the notice of cancellation is received by the Principal from the Surety(ies), then this obligation shall be null and void; otherwise it is to remain in full force and effect.
This obligation does not apply to any of the following-
(a)Any obligation of ______________[owner] under a workers' compensation, disability benefits, or unemployment compensation law or other similar law;
(b)Bodily injury to an employee of ______________[owner] arising from and in the course of employment by ________________[owner];
(c)Bodily injury or property damage arising from the ownership, maintenance, use, or entrustment to others of any aircraft, motor vehicle, or watercraft;
(d)Property damage to any property owned, rented, loaned to, in the care of, custody, or control of, or occupied by ______________[owner] that is not the direct result of are lease from a petroleum underground storage tank;
(e)Bodily injury or property damage for which ______________[owner] is obligated to pay damages by reason of the assumption of liability in a contract or agreement other than a contract or agreement entered into to meet the requirements of §§ 6700.10 through 6700.17.
The Surety(ies) shall become liable on this bond obligation only when the Principal has failed to fulfill the conditions described above.
Upon notification by the Director that the Principal has failed to ______________________________
["Take corrective action, in accordance with Chapter 62 and the Director's instructions," and/or "compensate injured third parties"] as guaranteed by this bond, the Surety(ies) shall either perform _____________________________["Corrective action in accordance with Title 20 DCMR, Environment, Chapter 62 and the Director's instructions," or third-party liability compensation"] or place funds in an amount up to the annual aggregate penal sum into the standby trust fund as directed by the Director under § 6712.
Upon notification by the Director that the Principal has failed to provide alternate financial assurance within sixty (60) days after the date the notice of cancellation is received by the Principal from the Surety(ies) and that the Director has determined or suspects that a release has occurred, the Surety(ies) shall place funds in an amount not exceeding the annual aggregate penal sum into the standby trust fund as directed by the Director under § 6712.
The Surety(ies) hereby waive(s) notification of amendments to applicable laws, statute, 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 annual aggregate to the penal sum shown on the face of the bond, but in no event shall the obligation of the Surety(ies) hereunder exceed the amount of said annual aggregate penal sum.
The Surety(ies) may cancel the bond by sending notice of cancellation by certified mail to the Principal; Provided, however, that cancellations shall not occur during the one hundred twenty (120) days beginning on the date of receipt of the notice of cancellation by the Principal, as evidenced by the return receipt.
The Principal may terminate this bond by sending written notice to the Surety(ies).
In Witness Thereof, 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 Appendix 67-6 of the UST Regulations (Title 20 DCMR, Environment) on the date this bond was executed.
Principal
[Signature(s)] __________________________________________________________________________
[Names]__________________________________________________________________________
[Title(s)]__________________________________________________________________________
[Corporate seal] ____________________________________________________________________
Corporate surety(ies)
[Name and address] __________________________________________________________________
[State of incorporation] ________________________________________________________________
[Liability limit] $ __________________________________________________________________
[Signature(s)] ________________________________________________________________________
[Names(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: $ ___________________________________________________________________
APPENDIX 67-7IRREVOCABLE STANDBY LETTER OF CREDIT
___________________________________ [Name and address of issuing institution]
_____________________________________ [Name and address of Director and Deputy Director of D.C. Department of Health (DOH)]
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] of ___________________[address] up to the aggregate amount of ___________________[in words] U.S. dollars ($ __________ [insert dollar amount] available upon presentation _____________________[insert, if more than one Director of a state implementing agency is a beneficiary, "by any one of you"]
(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 Subtitle I of the Resource Conservation and Recovery Act of 1976, as amended."
This letter of credit may be drawn on to cover _____________________ [insert: "taking corrective action" and/or "compensating third parties for bodily injury and property damage caused by" either "sudden accidental releases" or "nonsudden accidental releases" or "accidental releases"] arising from operating the underground storage tank(s) identified below in the amount of ____________[in words] $______________ [insert dollar amount] per occurrence and ______________[in words] $________________[insert dollar amount] annual aggregate.
UST Facility I.D.
Number of UST(s)
Name/Address of
Number
UST(s) Facility
___
___
___
___
___
___
___
___
___
___
___
___
___
___
___
[List the number of tanks at each facility and the name(s) and address(es) of the facility(ies) where the tanks are located. If more than one instrument is used to assure different tanks at any one facility, for each tank covered by this instrument, list the tank identification number provided in the notification submitted pursuant to § 5600 of this subtitle, and the name and address of the facility as above.]
The letter of credit may not be drawn on to cover any of the following:
(a)Any obligation of _________________[owner or operator] under a workers' compensation, disability benefits, or unemployment compensation law or other similar law;
(b)Bodily injury to an employee of __________________[insert owner or operator] arising from, and in the course of, employment by __________________[insert owner or operator];
(c)Bodily injury or property damage arising from the ownership, maintenance, use, or entrustment to others of any aircraft, motor vehicle, or watercraft;
(d)Property damage to any property owned, rented, loaned to, in the care, custody, or control of, or occupied by _______________________[insert owner or operator] that is not the direct result of a release from a petroleum underground storage tank;
(e)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 other than a contract or agreement entered into to meet the requirements of §§ 6700.10 through 6700.17 of this chapter.
This letter of credit is effective as of _______________[date] and shall expire on _________________ [date], but such expiration date shall be automatically extended for a period of _________________[at least the length of the original term] on _________________[expiration date] and on each successive expiration date, unless, at least one hundred twenty (120) days before the current expiration date, we notify __________________[owner or operator] by certified mail that we have decided not to extend this letter of credit beyond the current expiration date. In the event that _________________[owner] is so notified, any unused portion of the credit shall be available upon presentation of your sight draft for one hundred twenty (120) days after the date of receipt by ________________[owner], as shown on the signed return receipt.
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] in accordance with your instructions.
We certify that the wording of this letter of credit is identical to the wording specified in Appendix 67-7 to the UST Regulations, Title 20 DCMR, Environment, on the date shown immediately below.
[Signature(s) and title(s) of official(s) of issuing institution]
_________________________________________________________________________________
[Title]
_______________________________________________________________________________
[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"] .
APPENDIX 67-8PRIVATE TRUST AGREEMENT
Trust agreement, the "Agreement," entered into as of _______________[date] by and between ___________________[name of owner], a __________________[name of state] ____________________ ["corporation", "partnership," "association," or "proprietorship"], the "Grantor," and __________________ [name of corporation ________________________"Incorporated in the State of ________________" or "a national bank], The Trustee.
Whereas, the Department of Health (DOH) an agency of the District of Columbia Government, has established certain regulations applicable to the Grantor, requiring that an owner or operator of an underground storage tank shall provide assurance that funds will be available when needed for corrective action and third-party compensation for bodily injury and property damage caused by sudden and nonsudden accidental releases arising from the operation of the underground storage tank. The attached Schedule A lists the number of tanks at each facility and the name(s) and address(es) of the facility(ies) where the tanks are located that are covered by the standby trust agreement.
[Whereas, the Grantor has elected to establish _____________________[insert either "a guarantee," "surety bond," or "letter of credit"] to provide all or part of such financial assurance for the underground storage tanks identified herein and is required to establish a standby trust fund able to accept payments from the instrument (This paragraph is only applicable to the standby trust agreement)];
Whereas, the Grantor, acting through its duly authorized officers, has selected the Trustee to be the trustee under this agreement, and the Trustee is willing to act as trustee; Now, therefore, the Grantor and the Trustee agree as follows:
SECTION 1. DEFINITIONS
As used in this Agreement:
(a)The term "Grantor" means the owner who enters into this Agreement and any successors or assigns of the Grantor.
(b)The term "Trustee" means the Trustee who enters into this Agreement and any successor Trustee.
SECTION 2. IDENTIFICATION OF THE FINANCIAL ASSURANCE MECHANISM
This Agreement pertains to the ___________________________[identity the financial assurance mechanism, either a guarantee, surety bond, or letter of credit, from which the standby trust fund is established to receive payments (This paragraph is only applicable to the standby trust agreement)].
SECTION 3. ESTABLISHMENT OF FUND
The Grantor and the Trustee hereby establish a trust fund, the "Fund," for the benefit of ________________[the Department]. The Grantor and the Trustee intend that no third-party have access to the Fund except as herein provided. [The Fund is established initially as a standby to receive payments and shall not consist of any property.] Payments made by the provider of financial assurance pursuant to the Director's instruction are transferred to the Trustee and are 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 as provider of financial assurance, any payments necessary to discharge any liability of the Grantor established by the Director.
SECTION 4. PAYMENT FOR ["CORRECTIVE ACTION" OR "THIRD-PARTY LIABILITY CLAIMS"]
The Trustee shall make payments from the Fund as the Director shall direct, in writing, to provide for the payment of the costs of ________________________________[insert: "taking corrective action" or "compensating third parties for bodily injury and property damage caused by" either "sudden accidental releases" or "nonsudden accidental releases" or "accidental releases"] arising from operating the tanks or covered by the financial assurance mechanism identified in the Agreement.
The Fund may not be drawn upon to cover any of the following:
(a)Any obligation of _____________________[insert owner or operator]under a workers' compensation, disability benefits, or unemployment compensation law or other similar law;
(b)Bodily injury to any employee of ____________________[owner or operator] arising from, and in the course of employment by ________________________[insert owner or operator];
(c)Bodily injury or property damage arising from the ownership, maintenance, use, or entrustment to others of any aircraft, motor vehicle, or watercraft;
(d)Property damage to any property owned, rented, loaned to, in the care, custody, or control of, or occupied by __________________________[insert owner or operator] that is not the direct result of a release from a petroleum underground storage tank;
(e)Bodily injury or property damage for which ____________________[owner or operator] is obligated to pay damages by reason of the assumption of liability in a contract or agreement other than a contract or agreement entered into to meet the requirements of §§ 6700.10 through 6700.17 of this chapter.
The Trustee shall reimburse the Grantor, or other persons as specified by the Department, from the Fund for corrective action expenditures or third-party liability claims in such amounts as the Director shall direct in writing. In addition, the Trustee shall refund to the Grantor such amounts as the Director specifies in writing. Upon refund, such funds shall no longer constitute part of the Fund as defined herein.
SECTION 5. PAYMENTS COMPRISING
Payments made to the Trustee for the Fund shall consist of cash and securities acceptable to the Trustee.
SECTION 6. TRUSTEE MANAGEMENT
The Trustee shall invest and reinvest the principal and income of the Fund and keep the Fund invested as a single fund, without distinction between principal and income, in accordance with general investment policies and guidelines which the Grantor may communicate in writing to the Trustee from time-to-time, subject, however, to the provisions of this section. In investing, reinvesting, exchanging, selling, and managing the Fund, the Trustee shall discharge his or her duties with respect to the trust fund solely in the interest of the beneficiaries and with the care, skill, prudence, and diligence under the circumstances then prevailing which persons of prudence, acting in a like capacity and familiar with such matters, would use in the conduct of an enterprise of a like character and with like aims; except that:
(a)Securities or other obligations of the Grantor, or any other owner or operator of the tanks, 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;
(b)The Trustee is authorized to invest the Fund in time or demand deposits of the Trustee, to the extent insured by an agency of the federal or state government; and
(c)The Trustee is authorized to hold cash awaiting investment or distribution uninvested for a reasonable time and without liability for the payment of interest thereon.
SECTION 7. COMMINGLING AND INVESTMENT
The Trustee is expressly authorized in its discretion:
(a)To transfer from time-to-time any or all of the assets of the Fund to any common, commingled, or collective trust fund created by the Trustee in which the Fund is eligible to participate, subject to all of the provisions thereof, to be commingled with the assets of other trusts participating therein; and
(b)To purchase shares in any investment company registered under the Investment Company Act of 1940, 15 U.S.C. §§ 80a-1 et seq., including one which may be created, managed, underwritten, or to which investment advice is rendered or the shares of which are sold by the Trustee. The Trustee may vote such shares in its discretion.
SECTION 8. EXPRESS POWERS OF TRUSTEE
Without in any way limiting the powers and discretion conferred upon the Trustee by the other provisions of this Agreement or by law, the Trustee is expressly authorized and empowered:
(a)To sell, exchange, convey, transfer, or otherwise dispose of any property held by it, by public or private sale. No person dealing with the Trustee shall be bound to see to the application of the purchase money or to inquire into the validity or expediency of any such sale or other disposition;
(b)To make, execute, acknowledge, and deliver any and all documents of transfer and conveyance and any and all other instruments that may be necessary or appropriate to carry out the powers herein granted;
(c)To register any securities held in the Fund in its own name or in the name of a nominee and to hold any security in bearer form or in book entry, or to combine certificates representing such securities with certificates of the same issue held by the Trustee in other fiduciary capacities, or to deposit or arrange for the deposit of such securities in a qualified central depository even though when so deposited, such securities may be merged and held in bulk in the name of the nominee of such depository with other securities deposited therein by another person or to deposit or arrange for the deposit of any securities issued by the United States Government, or any agency or instrumentality thereof, with a Federal Reserve Bank, but the books and records of the Trustee shall at all times show that all such securities are part of the Fund;
(d)To deposit any cash in the Fund in interest-bearing accounts maintained or savings certificates issued by the Trustee, in its separate corporate capacity, or in any other banking institution affiliated with the Trustee, to the extent insured by an agency of the federal or state government; and
(e)To compromise or otherwise adjust all claims in favor of or against the Fund.
SECTION 9. TAXES AND EXPENSES
All taxes of any kind that may be assessed or levied against or in respect of the Fund and all brokerage commissions incurred by the Fund shall be paid from the Fund. All other expenses incurred by the Trustee in connection with the administration of this Trust, including fees for legal services rendered to the Trustee, the compensation of the Trustee to the extent not paid directly by the Grantor, and all other proper charges and disbursements of the Trustee shall be paid from the Fund.
SECTION 10. ADVICE COUNSEL
The Trustee may from time-to-time consult with counsel, who may be counsel to the Grantor, with respect to any questions 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 writing sent to the Grantor and the present Trustee by certified mail ten (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, and instructions by the Grantor to the trustee shall be in writing, signed by such persons as are designated in Schedule B or such other designees as the Grantor may designate by amendment to Schedule B. 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 Director to the Trustee shall be in writing, signed by the Director, and the Trustee shall act and shall be fully protected in acting in accordance with such orders, requests, and instructions. The Trustee shall have the right to assume, in the absence of written notice to the contrary, that no event constituting a change or a termination of the authority of any person to act on behalf of the Grantor or the Director 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 Director, except as provided for herein.
SECTION 14. AMENDMENT OF AGREEMENT
This Agreement may be amended by an instrument in writing executed by the Grantor and the Trustee or by the Trustee and the Director if the Grantor ceases to exist.
SECTION 15. IRREVOCABILITY TERMINATION
Subject to the right of the parties to amend this Agreement as provided in Section 14 above. this Trust shall be irrevocable and shall continue until terminated at the written direction of the Grantor and the Trustee, or by the Trustee and the Director, if the Grantor ceases to exist. Upon termination of the Trust, all remaining trust property, less final trust administration expenses, shall be delivered to the Grantor.
SECTION 16. 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 Director issued in accordance with this Agreement. The Trustee shall be indemnified and saved harmless by the Grantor, 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 District of Columbia, or the Comptroller of the Currency in the case of National Association banks.
SECTION 18. INTERPRETATION
As used in this Agreement, words in 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 (if applicable) 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 Appendix 67-8 to the UST Regulations, Title 20 DCMR, Environment, on the date written above.
[Signature of grantor]
_________________________________________________________________________________
[Name of the grantor]
_________________________________________________________________________________
[Title]
________________________________________________________________________________
Attest:
[Signature of trustee]
_________________________________________________________________________________
[Name of trustee]
_________________________________________________________________________________
[Title]
___________________________________________________________________________________
[Seal]
___________________________________________________________________________________
Attest:
[Signature of witness]
____________________________________________________________________________________
[Name of witness]
___________________________________________________________________________________
[Title]
____________________________________________________________________________________
[Seal]
_________________________________________________________________________________
The standby trust agreement or trust agreement must be accompanied by a formal certification of acknowledgement similar to the following:
District of Columbia, ______________ss:
On this ___________________[date], before me personally came ____________________ [owner] who, being by me duly sworn, did depose and say that he/she resides at _________________________ [address] that he/s he is ___________________________[title] of _______________________ [corporation], the corporation described in and which executed the above instrument; that he/she knows the seal of said corporation; that the seal affixed to such instrument is such corporate seal; that it was so affixed by order of the Board of Directors of said corporation; and that he/she signed his/her name thereto by like order.
[Signature of notary public] ___________________________________________________________
[Name of notary public] _____________________________________________________________
SCHEDULE A TO PRIVATE TRUST AGREEMENT
UST(s) Facility I.D.
Number of UST(s)
Name/Address
Number
UST Facility
______
______
______
[List the number of tanks at each facility and the name(s) and address(es) of the facility(ies) where the tanks are located. If more than one instrument is used to assure different tanks at any one facility, for each tank covered by this instrument, list the tank identification number provided in the notification submitted pursuant to § 5600 of this subtitle, and the name and address of the facility as above.]
SCHEDULE B TO PRIVATE TRUST AGREEMENT
__________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________
________________________________________________________________________________
[Grantor should list here the name, title, and business address of each person with authority to issue orders, requests or instructions pertaining to this Private Trust Agreement on behalf of Grantor.]
APPENDIX 67-9CERTIFICATION OF VALID CLAIM
The undersigned, as principals and as legal representatives of _________________________[owner] and ________________________________________________[insert name and address of third-party claimant] hereby certify that the claim of bodily injury [and/or] property damage caused by accidental release arising from operating _____________________________________[owner or operator] underground storage tank should be paid in the amount of $[____________________].
Owner or operator
____________________________________________________________________________________
[Signature(s)]
___________________________________________________________________________________
Attorney(s) for Owner
__________________________________________________________________________________
Claimant(s)
_______________________________________________________________________________________
[Signature(s)]
____________________________________________________________________________________
Attorney(s) for Claimant(s)
_____________________________________________________________________________________
[Notary]
____________________________________________________________________________________
Date
__________________________________________________________________________________
[Notary]
___________________________________________________________________________________
Date
__________________________________________________________________________________