Source: 53 FR 43370, Oct. 26, 1988, unless otherwise noted.
[TOP] §280.90
Applicability.
(a) This subpart applies to owners and operators of all petroleum underground
storage tank (UST) systems except as otherwise provided in this section.
(b) Owners and operators of petroleum UST systems are subject to these
requirements if they are in operation on or after the date for compliance
established in §280.91.
(c) State and Federal government entities whose debts and liabilities are the
debts and liabilities of a state or the United States are exempt from the
requirements of this subpart.
(d) The requirements of this subpart do not apply to owners and operators of
any UST system described in §280.10 (b) or (c).
(e) If the owner and operator of a petroleum underground storage tank are
separate persons, only one person is required to demonstrate financial
responsibility; however, both parties are liable in event of noncompliance.
Regardless of which party complies, the date set for compliance at a particular
facility is determined by the characteristics of the owner as set forth in
§280.91.
[TOP] §280.91
Compliance dates.
Owners of petroleum underground storage tanks are required to comply with the
requirements of this subpart by the following dates:
(a) All petroleum marketing firms owning 1,000 or more USTs and all other UST
owners that report a tangible net worth of $20 million or more to the U.S.
Securities and Exchange Commission (SEC), Dun and Bradstreet, the Energy
Information Administration, or the Rural Electrification Administration; January
24, 1989, except that compliance with §280.94(b) is required by: July 24, 1989.
(b) All petroleum marketing firms owning 100-999 USTs; October 26, 1989.
(c) All petroleum marketing firms owning 13-99 USTs at more than one
facility; April 26, 1991.
(d) All petroleum UST owners not described in paragraphs (a), (b), or (c) of
this section, excluding local government entities; December 31, 1993.
(e) All local government entities (including Indian tribes) not included in
paragraph (f) of this section; February 18, 1994.
(f) Indian tribes that own USTs on Indian lands which meet the applicable
technical requirements of this part; December 31, 1998.
[53 FR 43370, Oct. 26, 1988, as amended at 54 FR 5452, Feb. 3, 1989;
55 FR 18567, May 2, 1990; 55 FR 46025, Oct. 31, 1990; 56 FR 66373, Dec. 23,
1991; 59 FR 9607, Feb. 28, 1994]
[TOP] §280.92
Definition of terms.
When used in this subpart, the following terms shall have the meanings given
below:
Accidental release means any sudden or nonsudden release of petroleum
from an underground storage tank that results in a need for corrective action
and/or compensation for bodily injury or property damage neither expected nor
intended by the tank owner or operator.
Bodily injury shall have the meaning given to this term by applicable
state law; however, this term shall not include those liabilities which,
consistent with standard insurance industry practices, are excluded from
coverage in liability insurance policies for bodily injury.
Chief Financial Officer , in the case of local government owners and
operators, means the individual with the overall authority and responsibility
for the collection, disbursement, and use of funds by the local government.
Controlling interest means direct ownership of at least 50 percent of
the voting stock of another entity.
Director of the Implementing Agency means the EPA Regional
Administrator, or, in the case of a state with a program approved under section
9004, the Director of the designated state or local agency responsible for
carrying out an approved UST program.
Financial reporting year means the latest consecutive twelve-month
period for which any of the following reports used to support a financial test
is prepared:
(1) a 10-K report submitted to the SEC;
(2) an annual report of tangible net worth submitted to Dun and Bradstreet;
or
(3) annual reports submitted to the Energy Information Administration or the
Rural Electrification Administration.
"Financial reporting year" may thus comprise a fiscal or a calendar year
period.
Legal defense cost is any expense that an owner or operator or
provider of financial assurance incurs in defending against claims or actions
brought,
(1) By EPA or a state to require corrective action or to recover the costs of
corrective action;
(2) By or on behalf of a third party for bodily injury or property damage
caused by an accidental release; or
(3) By any person to enforce the terms of a financial assurance mechanism.
Local government shall have the meaning given this term by applicable
state law and includes Indian tribes. The term is generally intended to include:
(1) Counties, municipalities, townships, separately chartered and operated
special districts (including local government public transit systems and
redevelopment authorities), and independent school districts authorized as
governmental bodies by state charter or constitution; and (2) Special districts
and independent school districts established by counties, municipalities,
townships, and other general purpose governments to provide essential services.
Occurrence means an accident, including continuous or repeated
exposure to conditions, which results in a release from an underground storage
tank.
Note: This definition is intended to assist in the understanding of
these regulations and is not intended either to limit the meaning of
"occurrence" in a way that conflicts with standard insurance usage or to prevent
the use of other standard insurance terms in place of "occurrence."
Owner or operator, when the owner or operator are separate parties,
refers to the party that is obtaining or has obtained financial assurances.
Petroleum marketing facilities include all facilities at which
petroleum is produced or refined and all facilities from which petroleum is sold
or transferred to other petroleum marketers or to the public.
Petroleum marketing firms are all firms owning petroleum marketing
facilities. Firms owning other types of facilities with USTs as well as
petroleum marketing facilities are considered to be petroleum marketing firms.
Property damage shall have the meaning given this term by applicable
state law. This term shall not include those liabilities which, consistent with
standard insurance industry practices, are excluded from coverage in liability
insurance policies for property damage. However, such exclusions for property
damage shall not include corrective action associated with releases from tanks
which are covered by the policy.
Provider of financial assurance means an entity that provides
financial assurance to an owner or operator of an underground storage tank
through one of the mechanisms listed in §§280.95-280.103, including a guarantor,
insurer, risk retention group, surety, issuer of a letter of credit, issuer of a
state-required mechanism, or a state.
Substantial business relationship means the extent of a business
relationship necessary under applicable state law to make a guarantee contract
issued incident to that relationship valid and enforceable. A guarantee contract
is issued "incident to that relationship" if it arises from and depends on
existing economic transactions between the guarantor and the owner or operator.
Substantial governmental relationship means the extent of a
governmental relationship necessary under applicable state law to make an added
guarantee contract issued incident to that relationship valid and enforceable. A
guarantee contract is issued "incident to that relationship" if it arises from a
clear commonality of interest in the event of an UST release such as coterminous
boundaries, overlapping constituencies, common ground-water aquifer, or other
relationship other than monetary compensation that provides a motivation for the
guarantor to provide a guarantee.
Tangible net worth means the tangible assets that remain after
deducting liabilities; such assets do not include intangibles such as goodwill
and rights to patents or royalties. For purposes of this definition, "assets"
means all existing and all probable future economic benefits obtained or
controlled by a particular entity as a result of past transactions.
Termination under §280.97(b)(1) and §280.97(b)(2) means only those
changes that could result in a gap in coverage as where the insured has not
obtained substitute coverage or has obtained substitute coverage with a
different retroactive date than the retroactive date of the original policy.
[53 FR 43370, Oct. 26, 1988, as amended at 54 FR 47081, Nov. 9, 1989;
58 FR 9050, Feb. 18, 1993]
[TOP] §280.93
Amount and scope of required financial responsibility.
(a) Owners or operators of petroleum underground storage tanks must
demonstrate financial responsibility for taking corrective action and for
compensating third parties for bodily injury and property damage caused by
accidental releases arising from the operation of petroleum underground storage
tanks in at least the following per-occurrence amounts:
(1) For owners or operators of petroleum underground storage tanks that are
located at petroleum marketing facilities, or that handle an average of more
than 10,000 gallons of petroleum per month based on annual throughput for the
previous calendar year; $1 million.
(2) For all other owners or operators of petroleum underground storage tanks;
$500,000.
(b) Owners or operators of petroleum underground storage tanks must
demonstrate financial responsibility for taking corrective action and for
compensating third parties for bodily injury and property damage caused by
accidental releases arising from the operation of petroleum underground storage
tanks in at least the following annual aggregate amounts:
(1) For owners or operators of 1 to 100 petroleum underground storage tanks,
$1 million; and
(2) For owners or operators of 101 or more petroleum underground storage
tanks, $2 million.
(c) For the purposes of paragraphs (b) and (f) of this section, only, "a
petroleum underground storage tank" means a single containment unit and does not
mean combinations of single containment units.
(d) Except as provided in paragraph (e) of this section, if the owner or
operator uses separate mechanisms or separate combinations of mechanisms to
demonstrate financial responsibility for:
(1) Taking corrective action;
(2) Compensating third parties for bodily injury and property damage caused
by sudden accidental releases; or
(3) Compensating third parties for bodily injury and property damage caused
by nonsudden accidental releases, the amount of assurance provided by each
mechanism or combination of mechanisms must be in the full amount specified in
paragraphs (a) and (b) of this section.
(e) If an owner or operator uses separate mechanisms or separate combinations
of mechanisms to demonstrate financial responsibility for different petroleum
underground storage tanks, the annual aggregate required shall be based on the
number of tanks covered by each such separate mechanism or combination of
mechanisms.
(f) Owners or operators shall review the amount of aggregate assurance
provided whenever additional petroleum underground storage tanks are acquired or
installed. If the number of petroleum underground storage tanks for which
assurance must be provided exceeds 100, the owner or operator shall demonstrate
financial responsibility in the amount of at least $2 million of annual
aggregate assurance by the anniversary of the date on which the mechanism
demonstrating financial responsibility became effective. If assurance is being
demonstrated by a combination of mechanisms, the owner or operator shall
demonstrate financial responsibility in the amount of at least $2 million of
annual aggregate assurance by the first-occurring effective date anniversary of
any one of the mechanisms combined (other than a financial test or guarantee) to
provide assurance.
(g) The amounts of assurance required under this section exclude legal
defense costs.
(h) The required per-occurrence and annual aggregate coverage amounts do not
in any way limit the liability of the owner or operator.
[TOP] §280.94
Allowable mechanisms and combinations of mechanisms.
(a) Subject to the limitations of paragraphs (b) and (c) of this section,
(1) An owner or operator, including a local government owner or operator, may
use any one or combination of the mechanisms listed in §§280.95 through 280.103
to demonstrate financial responsibility under this subpart for one or more
underground storage tanks, and
(2) A local government owner or operator may use any one or combination of
the mechanisms listed in §§280.104 through 280.107 to demonstrate financial
responsibility under this subpart for one or more underground storage tanks.
(b) An owner or operator may use a guarantee under §280.96 or surety bond
under §280.98 to establish financial responsibility only if the Attorney(s)
General of the state(s) in which the underground storage tanks are located has
(have) submitted a written statement to the implementing agency that a guarantee
or surety bond executed as described in this section is a legally valid and
enforceable obligation in that state.
(c) An owner or operator may use self-insurance in combination with a
guarantee only if, for the purpose of meeting the requirements of the financial
test under this rule, the financial statements of the owner or operator are not
consolidated with the financial statements of the guarantor.
[53 FR 43370, Oct. 26, 1988, as amended at 58 FR 9051, Feb. 18,
1993]
[TOP] §280.95
Financial test of self-insurance.
(a) An owner or operator, and/or guarantor, may satisfy the requirements of
§280.93 by passing a financial test as specified in this section. To pass the
financial test of self-insurance, the owner or operator, and/or guarantor must
meet the criteria of paragraph (b) or (c) of this section based on year-end
financial statements for the latest completed fiscal year.
(b)(1) The owner or operator, and/or guarantor, must have a tangible net
worth of at least ten times:
(i) The total of the applicable aggregate amount required by §280.93, based
on the number of underground storage tanks for which a financial test is used to
demonstrate financial responsibility to EPA under this section or to a state
implementing agency under a state program approved by EPA under 40 CFR part 281;
(ii) The sum of the corrective action cost estimates, the current closure and
post-closure care cost estimates, and amount of liability coverage for which a
financial test is used to demonstrate financial responsibility to EPA under 40
CFR 264.101, 264.143, 264.145, 265.143, 165.145, 264.147, and 265.147 or to a
state implementing agency under a state program authorized by EPA under 40 CFR
part 271; and
(iii) The sum of current plugging and abandonment cost estimates for which a
financial test is used to demonstrate financial responsibility to EPA under 40
CFR 144.63 or to a state implementing agency under a state program authorized by
EPA under 40 CFR part 145.
(2) The owner or operator, and/or guarantor, must have a tangible net worth
of at least $10 million.
(3) The owner or operator, and/or guarantor, must have a letter signed by the
chief financial officer worded as specified in paragraph (d) of this section.
(4) The owner or operator, and/or guarantor, must either:
(i) File financial statements annually with the U.S. Securities and Exchange
Commission, the Energy Information Administration, or the Rural Electrification
Administration; or
(ii) Report annually the firm's tangible net worth to Dun and Bradstreet, and
Dun and Bradstreet must have assigned the firm a financial strength rating of 4A
or 5A.
(5) The firm's year-end financial statements, if independently audited,
cannot include an adverse auditor's opinion, a disclaimer of opinion, or a
"going concern" qualification.
(c)(1) The owner or operator, and/or guarantor must meet the financial test
requirements of 40 CFR 264.147(f)(1), substituting the appropriate amounts
specified in §280.93 (b)(1) and (b)(2) for the "amount of liability coverage"
each time specified in that section.
(2) The fiscal year-end financial statements of the owner or operator, and/or
guarantor, must be examined by an independent certified public accountant and be
accompanied by the accountant's report of the examination.
(3) The firm's year-end financial statements cannot include an adverse
auditor's opinion, a disclaimer of opinion, or a "going concern" qualification.
(4) The owner or operator, and/or guarantor, must have a letter signed by the
chief financial officer, worded as specified in paragraph (d) of this section.
(5) If the financial statements of the owner or operator, and/or guarantor,
are not submitted annually to the U.S. Securities and Exchange Commission, the
Energy Information Administration or the Rural Electrification Administration,
the owner or operator, and/or guarantor, must obtain a special report by an
independent certified public accountant stating that:
(i) He has compared the data that the letter form the chief financial officer
specifies as having been derived from the latest year-end financial statements
of the owner or operator, and/or guarantor, with the amounts in such financial
statements; and
(ii) In connection with that comparison, no matters came to his attention
which caused him to believe that the specified data should be adjusted.
(d) To demonstrate that it meets the financial test under paragraph (b) or
(c) of this section, the chief financial officer of the owner or operator, or
guarantor, must sign, within 120 days of the close of each financial reporting
year, as defined by the twelve-month period for which financial statements used
to support the financial test are prepared, a letter worded exactly as follows,
except that the instructions in brackets are to be replaced by the relevant
information and the brackets deleted:
LETTER FROM CHIEF FINANCIAL OFFICER
I am the chief financial officer of [insert: name and address of the owner or
operator, or guarantor]. This letter is in support of the use of [insert: "the
financial test of self-insurance," and/or "guarantee"] to demonstrate financial
responsibility for [insert: "taking corrective action" and/or "compensating
third parties for bodily injury and property damage"] caused by [insert:
"suddent accidential releases" and/or "nonsudden accidential releases"] in the
amount of at least [insert: dollar amount] per occurrence and [insert: dollar
amount] annual aggregate arising from operating (an) underground storage
tank(s).
Underground storage tanks at the following facilities are assured by this
financial test or a financial test under an authorized State program by this
[insert: "owner or operator," and/or "guarantor"]: [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 or a financial
test under a State program approved under 40 CFR part 281. 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 or a
financial test under a State program authorized under 40 CFR part 281 by the
tank identification number provided in the notification submitted pursuant to 40
CFR 280.22 or the corresponding State requirements.]
A [insert: "financial test," and/or "guarantee"] is also used by this
[insert: "owner or operator," or "guarantor"] to demonstrate evidence of
financial responsibility in the following amounts under other EPA regulations or
state programs authorized by EPA under 40 CFR parts 271 and 145:
EPA Regulations 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....................................... $____
Liabilitly Coverage..................................... $____
Corrective Action....................................... $____
Plugging and Abandonment................................ $____
Total............................................... $____
This [insert: "owner or operator," or "guarantor"] has not received an
adverse opinion, a disclaimer of opinion, or a "going concern" qualification
from an independent auditor on his financial statements for the latest completed
fiscal year.
[Fill in the information for Alternative I if the criteria of paragraph (b)
of §280.95 are being used to demonstrate compliance with the financial test
requirements. Fill in the information for Alternative II if the criteria of
paragraph (c) of §280.95 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 $10
million?
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
Administrati
on?
11. Have __ _
financial
statements
for the
lastest
fiscal year
been filed
with the
Rural
Electrificat
ion
Administrati
on?
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.]
Alternative II
1. Amount of $____
annual UST
aggregate
coverage
being
assured by a
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]
7. Total assets $____
in the U.S.
[required
only if less
than 90
percent of
assets are
located in
the U.S.]
Yes No
8. Is line 6 at $__ _
least $10
million?
9. Is line 6 at __ _
least 6
times line
3?
10. Are at least __ _
90 percent
of assets
located in
the U.S.?
[If ``No,''
complete
line 11.]
11. Is line 7 at __ _
least 6
times line
3?
[Fill in either lines 12-15 or lines 16-18:]
12. Current $____
assets
13. Current ____
liabilities
14. Net working _____
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
19. Have __ _
financial
statements
for the
latest
fiscal year
been filed
with the
SEC, the
Energy
Information
Administrati
on, or the
Rural
Electrificat
ion
Administrati
on?
[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 40 CFR part 280.95(d) as such regulations were constituted on the
date shown immediately below.
[Signature]
[Name]
[Title]
[Date]
(e) If an owner or operator using the test to provide financial assurance
finds that he or she no longer meets the requirements of the financial test
based on the year-end financial statements, the owner or operator must obtain
alternative coverage within 150 days of the end of the year for which financial
statements have been prepared.
(f) The Director of the implementing agency may require reports of financial
condition at any time from the owner or operator, and/or guarantor. If the
Director finds, on the basis of such reports or other information, that the
owner or operator, and/or guarantor, no longer meets the financial test
requirements of §280.95(b) or (c) and (d), the owner or operator must obtain
alternate coverage within 30 days after notification of such a finding.
(g) If the owner or operator fails to obtain alternate assurance within 150
days of finding that he or she no longer meets the requirements of the financial
test based on the year-end financial statements, or within 30 days of
notification by the Director of the implementing agency that he or she no longer
meets the requirements of the financial test, the owner or operator must notify
the Director of such failure within 10 days.
[TOP] §280.96
Guarantee.
(a) An owner or operator may satisfy the requirements of §280.93 by obtaining
a guarantee that conforms to the requirements of this section. The guarantor
must be:
(1) A firm that (i) possesses a controlling interest in the owner or
operator; (ii) possesses a controlling interest in a firm described under
paragraph (a)(1)(i) of this section; or, (iii) is controlled through stock
ownership by a common parent firm that possesses a controlling interest in the
owner or operator; or,
(2) A firm engaged in a substantial business relationship with the owner or
operator and issuing the guarantee as an act incident to that business
relationship.
(b) Within 120 days of the close of each financial reporting year the
guarantor must demonstrate that it meets the financial test criteria of §280.95
based on year-end financial statements for the latest completed financial
reporting year by completing the letter from the chief financial officer
described in §280.95(d) and must deliver the letter to the owner or operator. If
the guarantor fails to meet the requirements of the financial test at the end of
any financial reporting year, within 120 days of the end of that financial
reporting year the guarantor shall send by certified mail, before cancellation
or nonrenewal of the guarantee, notice to the owner or operator. If the Director
of the implementing agency notifies the guarantor that he no longer meets the
requirements of the financial test of §280.95 (b) or (c) and (d), the guarantor
must notify the owner or operator within 10 days of receiving such notification
from the Director. In both cases, the guarantee will terminate no less than 120
days after the date the owner or operator receives the notification, as
evidenced by the return receipt. The owner or operator must obtain alternative
coverage as specified in §280.110(c).
(c) The guarantee must be worded as follows, except that instructions in
brackets are to be replaced with the relevant information and the brackets
deleted:
GUARANTEE
Guarantee made this [date] by [name of guaranteeing entity], a business
entity organized under the laws of the state of [name of state], herein referred
to as guarantor, to [the state implementing agency] and to any and all third
parties, and obligees, on behalf of [owner or operator] of [business
address].Recitals.
(1) Guarantor meets or exceeds the financial test criteria of 40 CFR 280.95
(b) or (c) and (d) and agrees to comply with the requirements for guarantors as
specified in 40 CFR 280.96(b).
(2) [Owner or operator] owns or operates the following underground storage
tank(s) covered by this guarantee: [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 40 CFR
280.22 or the corresponding state requirement, and the name and address of the
facility.] This guarantee satisfies 40 CFR part 280, subpart H requirements for
assuring funding 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"; if coverage is different for different tanks or locations, indicate
the type of coverage applicable to each tank or location] arising from operating
the above-identified underground storage tank(s) in the amount of [insert dollar
amount] per occurrence and [insert dollar amount] annual aggregate.
(3) [Insert appropriate phrase: "On behalf of our subsidiary" (if guarantor
is corporate parent of the owner or operator); "On behalf of our affiliate" (if
guarantor is a related firm of the owner or operator); or "Incident to our
business relationship with" (if guarantor is providing the guarantee as an
incident to a substantial business relationship with owner or operator)] [owner
or operator], guarantor guarantees to [implementing agency] and to any and all
third parties that:
In the event that [owner or operator] fails to provide alternative coverage
within 60 days after receipt of a notice of cancellation of this guarantee and
the [Director of the implementing agency] 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 40 CFR 280.108, in an amount not to
exceed the coverage limits specified above.
In the event that the [Director] determines that [owner or operator] has
failed to perform corrective action for releases arising out of the operation of
the above-identified tank(s) in accordance with 40 CFR part 280, subpart F, the
guarantor upon written instructions from the [Director] shall fund a standby
trust in accordance with the provisions of 40 CFR 280.108, in an amount not to
exceed the coverage limits specified above.
If [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"] accidential 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 in accordance with the provisions of 40 CFR 280.108 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 40 CFR 280.95 (b) or (c) and (d), guarantor shall send within 120
days of such failure, by certified mail, notice to [owner or operator]. The
guarantee will terminate 120 days from the date of receipt of the notice by
[owner or operator], as evidenced by the return receipt.
(5) Guarantor agrees to notify [owner or operator] 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.
(6) Guarantor agrees to remain bound under this guarantee notwithstanding any
modification or alteration of any obligation of [owner or operator] pursuant to
40 CFR part 280.
(7) Guarantor agrees to remain bound under this guarantee for so long as
[owner or operator] must comply with the applicable financial responsibility
requirements of 40 CFR part 280, subpart H for the above-identified tank(s),
except that guarantor may cancel this guarantee by sending notice by certified
mail to [owner or operator], such cancellation to become effective no earlier
than 120 days after receipt of such notice by [owner or operator], as evidenced
by the return receipt.
(8) The guarantor's obligation does not apply to 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 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, loaded 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 damage 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 40 CFR 280.93.
(9) Guarantor expressly waives notice of acceptance of this guarantee by [the
implementing agency], by any or all third parties, or by [owner or operator].
I hereby certify that the wording of this guarantee is identical to the
wording specified in 40 CFR 280.96(c) 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: _____
(d) An owner or operator who uses a guarantee to satisfy the requirements of
§280.93 must establish a standby trust fund when the guarantee is obtained.
Under the terms of the guarantee, all amounts paid by the guarantor under the
guarantee will be deposited directly into the standby trust fund in accordance
with instructions from the Director of the implementing agency under §280.108.
This standby trust fund must meet the requirements specified in §280.103.
[TOP] §280.97
Insurance and risk retention group coverage.
(a) An owner or operator may satisfy the requirements of §290.93 by obtaining
liability insurance that conforms to the requirements of this section from a
qualified insurer or risk retention group. Such insurance may be in the form of
a separate insurance policy or an endorsement to an existing insurance policy.
(b) Each insurance policy must be amended by an endorsement worded as
specified in paragraph (b)(1) of this section, or evidenced by a certificate of
insurance worded as specified in paragraph (b)(2) of this section, except that
instructions in brackets must be replaced with the relevant information and the
brackets deleted:(1) Endorsement
Name: [name of each covered location] _____ _____
Address: [address of each covered location] _____ _____ Policy Number: _____
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: _____ _____ _____
ENDORSEMENT:
1. This endorsement certifies that the policy to which the endorsement is
attached provides liability insurance covering the following underground storage
tanks: [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 40 CFR 280.22, or the
corresponding state requirement, 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 location]
arising from operating the 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
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
damaged 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 40 CFR
280.95-280.102.
c. Whenever requested by [a Director of an implementing agency], 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 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 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 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 40 CFR 280.97(b)(1) 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 or Risk Retention Group]
[Name of person signing]
[Title of person signing], Authorized Representative of [name of Insurer or
Risk Retention Group]
[Address of Representative](2) Certificate of Insurance
Name: [name of each covered location] _____ _____
Address: [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
tank(s): [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 40 CFR
280.22, or the corresponding state requirement, 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 location]
arising from operating the 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
limit under the policy. This coverage is provided under [policy number]. The
effective 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 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 40 CFR
280.95-280.102.
c. Whenever requested by [a Director of an implementing agency], 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 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 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 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 40 CFR 280.97(b)(2) 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]
[Type name]
[Title], Authorized Representative of [name of Insurer or Risk Retention
Group]
[Address of Representative]
(c) Each insurance policy must be issued by an insurer or a risk retention
group that, at a minimum, is licensed to transact the business of insurance or
eligible to provide insurance as an excess or surplus lines insurer in one or
more states.
[53 FR 43370, Oct. 26, 1988, as amended at 54 FR 47081, Nov. 9,
1989]
[TOP] §280.98
Surety bond.
(a) An owner or operator may satisfy the requirements of §280.93 by obtaining
a surety bond that conforms to the requirements of this section. The surety
company issuing the bond must be among those listed as acceptable sureties on
federal bonds in the latest Circular 570 of the U.S. Department of the Treasury.
(b) The surety bond must be worded as follows, except that instructions in
brackets must be replaced with the relevant information and the brackets
deleted:
PERFORMANCE BOND Date bond executed: _____ Period of
coverage:_____
Principal: [legal name and business address of owner or operator] _____
Type of organization: [insert "individual," "joint venture," "partnership,"
or "corporation"] _____
State of incorporation (if applicable): _____
Surety(ies): [name(s) and business address(es)] _____
Scope of Coverage: [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 40 CFR 280.22, or the corresponding state
requirement, and the name and address of the facility. List the coverage
guaranteed by the bond: "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"].
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 implementing agency], 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 [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"; 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 40 CFR
part 280, subpart F and the Director of the state implementing agency's
instructions for," and/or "compensate injured third parties for bodily injury
and property damage caused by" either "sudden" or "nonsudden" or "sudden and
nonsudden"] accidental releases arising from operating the tank(s) indentified
above, or if the Principal shall provide alternate financial assurance, as
specified in 40 CFR part 280, subpart H, within 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.
Such obligation does not apply to 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 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 40 CFR 280.93.
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 of the implementing agency] that the
Principal has failed to ["take corrective action, in accordance with 40 CFR part
280, subpart F 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 40 CFR part 280 and the Director's
instructions," and/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 Regional Administrator or the Director] under 40 CFR 280.108.
Upon notification by [the Director] that the Principal has failed to provide
alternate financial assurance within 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 40 CFR
280.108.
The Surety(ies) hereby waive(s) notification of amendments to 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 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 cancellation shall not
occur during the 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 40 CFR 280.98(b) as such regulations were constituted on the date
this bond was executed.Principal
[Signature(s)]
[Names(s)]
[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: $_____
(c) Under the terms of the bond, the surety will become liable on the bond
obligation when the owner or operator fails to perform as guaranteed by the
bond. In all cases, the surety's liability is limited to the per-occurrence and
annual aggregate penal sums.
(d) The owner or operator who uses a surety bond to satisfy the requirements
of §280.93 must establish a standby trust fund when the surety bond is acquired.
Under the terms of the bond, all amounts paid by the surety under the bond will
be deposited directly into the standby trust fund in accordance with
instructions from the Director under §280.108. This standby trust fund must meet
the requirements specified in §280.103.
[TOP] §280.99
Letter of credit.
(a) An owner or operator may satisfy the requirements of §280.93 by obtaining
an irrevocable standby letter of credit that conforms to the requirements of
this section. The issuing institution must be an entity that has the authority
to issue letters of credit in each state where used and whose letter-of-credit
operations are regulated and examined by a federal or state agency.
(b) The letter of credit must be worded as follows, except that instructions
in brackets are to be replaced with the relevant information and the brackets
deleted:
IRREVOCABLE STANDBY LETTER OF CREDIT
[Name and address of issuing institution]
[Name and address of Director(s) of state implementing agency(ies)]
Dear Sir or Madam: We hereby establish our Irrevocable Standby Letter of
Credit No. ___ in your favor, at the request and for the account of [owner or
operator name] of [address] up to the aggregate amount of [in words] U.S.
dollars ($[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"] 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 persuant 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:
[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 40 CFR 280.22, or the corresponding state
requirement, and the name and address of the facility.]
The letter of credit may not be drawn on 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 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 40 CFR 280.93.
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 120 days before the curent
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 or operator] is 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 [owner or operator], 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 or operator] in accordance with your instructions.
We certify that the wording of this letter of credit is identical to the
wording specified in 40 CFR 280.99(b) as such regulations were constituted on
the date shown immediately below.
[Signature(s) and title(s) of official(s) of issuing institution]
[Date]
This credit is subject to [insert "the most recent edition of the Uniform
Customs and Practice for Documentary Credits, published and copyrighted by the
International Chamber of Commerce," or "the Uniform Commercial
Code"].
(c) An owner or operator who uses a letter of credit to satisfy the
requirements of §280.93 must also establish a standby trust fund when the letter
of credit is acquired. Under the terms of the letter of credit, all amounts paid
pursuant to a draft by the Director of the implementing agency will be deposited
by the issuing institution directly into the standby trust fund in accordance
with instructions from the Director under §280.108. This standby trust fund must
meet the requirements specified in §280.103.
(d) The letter of credit must be irrevocable with a term specified by the
issuing institution. The letter of credit must provide that credit be
automatically renewed for the same term as the original term, unless, at least
120 days before the current expiration date, the issuing institution notifies
the owner or operator by certified mail of its decision not to renew the letter
of credit. Under the terms of the letter of credit, the 120 days will begin on
the date when the owner or operator receives the notice, as evidenced by the
return receipt.
[53 FR 37194, Sept. 23, 1988, as amended at 59 FR 29960, June 10,
1994]
[TOP] §280.100
Use of state-required mechanism.
(a) For underground storage tanks located in a state that does not have an
approved program, and where the state requires owners or operators of
underground storage tanks to demonstrate financial responsibility for taking
corrective action and/or for compensating third parties for bodily injury and
property damage, an owner or operator may use a state-required financial
mechanism to meet the requirements of §280.93 if the Regional Administrator
determines that the state mechanism is at least equivalent to the financial
mechanisms specified in this subpart.
(b) The Regional Administrator will evaluate the equivalency of a
state-required mechanism principally in terms of: certainty of the availability
of funds for taking corrective action and/or for compensating third parties; the
amount of funds that will be made available; and the types of costs covered. The
Regional Administrator may also consider other factors as is necessary.
(c) The state, an owner or operator, or any other interested party may submit
to the Regional Administrator a written petition requesting that one or more of
the state-required mechanisms be considered acceptable for meeting the
requirements of §280.93. The submission must include copies of the appropriate
state statutory and regulatory requirements and must show the amount of funds
for corrective action and/or for compensating third parties assured by the
mechanism(s). The Regional Administrator may require the petitioner to submit
additional information as is deemed necessary to make this determination.
(d) Any petition under this section may be submitted on behalf of all of the
state's underground storage tank owners and operators.
(e) The Regional Administrator will notify the petitioner of his
determination regarding the mechanism's acceptability in lieu of financial
mechanisms specified in this subpart. Pending this determination, the owners and
operators using such mechanisms will be deemed to be in compliance with the
requirements of §280.93 for underground storage tanks located in the state for
the amounts and types of costs covered by such mechanisms.
[53 FR 43370, Oct. 26, 1988; 53 FR 51274, Dec. 21,
1988]
[TOP] §280.101
State fund or other state assurance.
(a) An owner or operator may satisfy the requirements of §280.93 for
underground storage tanks located in a state, where EPA is administering the
requirements of this subpart, which assures that monies will be available from a
state fund or state assurance program to cover costs up to the limits specified
in §280.93 or otherwise assures that such costs will be paid if the Regional
Administrator determines that the state's assurance is at least equivalent to
the financial mechanisms specified in this subpart.
(b) The Regional Administrator will evaluate the equivalency of a state fund
or other state assurance principally in terms of: Certainty of the availability
of funds for taking corrective action and/or for compensating third parties; the
amount of funds that will be made available; and the types of costs covered. The
Regional Administrator may also consider other factors as is necessary.
(c) The state must submit to the Regional Administrator a description of the
state fund or other state assurance to be supplied as financial assurance, along
with a list of the classes of underground storage tanks to which the funds may
be applied. The Regional Administrator may require the state to submit
additional information as is deemed necessary to make a determination regarding
the acceptability of the state fund or other state assurance. Pending the
determination by the Regional Administrator, the owner or operator of a covered
class of USTs will be deemed to be in compliance with the requirements of
§280.93 for the amounts and types of costs covered by the state fund or other
state assurance.
(d) The Regional Administrator will notify the state of his determination
regarding the acceptability of the state's fund or other assurance in lieu of
financial mechanisms specified in this subpart. Within 60 days after the
Regional Administrator notifies a state that a state fund or other state
assurance is acceptable, the state must provide to each owner or operator for
which it is assuming financial responsibility a letter or certificate describing
the nature of the state's assumption of responsibility. The letter or
certificate from the state must include, or have attached to it, the following
information: the facility's name and address and the amount of funds for
corrective action and/or for compensating third parties that is assured by the
state. The owner or operator must maintain this letter or certificate on file as
proof of financial responsibility in accordance with §280.107(b)(5).
[TOP] §280.102
Trust fund.
(a) An owner or operator may satisfy the requirements of §280.93 by
establishing a trust fund that conforms to the requirements of this section. The
trustee must be an entity that has the authority to act as a trustee and whose
trust operations are regulated and examined by a federal agency or an agency of
the state in which the fund is established.
(b) The wording of the trust agreement must be identical to the wording
specified in §280.103(b)(1), and must be accompanied by a formal certification
of acknowledgement as specified in §280.103(b)(2).
(c) The trust fund, when established, must be funded for the full required
amount of coverage, or funded for part of the required amount of coverage and
used in combination with other mechanism(s) that provide the remaining required
coverage.
(d) If the value of the trust fund is greater than the required amount of
coverage, the owner or operator may submit a written request to the Director of
the implementing agency for release of the excess.
(e) If other financial assurance as specified in this subpart is substituted
for all or part of the trust fund, the owner or operator may submit a written
request to the Director of the implementing agency for release of the excess.
(f) Within 60 days after receiving a request from the owner or operator for
release of funds as specified in paragraph (d) or (e) of this section, the
Director of the implementing agency will instruct the trustee to release to the
owner or operator such funds as the Director specifies in writing.
[TOP] §280.103
Standby trust fund.
(a) An owner or operator using any one of the mechanisms authorized by
§§280.96, 280.98, or 280.99 must establish a standby trust fund when the
mechanism is acquired. The trustee of the standby trust fund must be an entity
that has the authority to act as a trustee and whose trust operations are
regulated and examined by a Federal agency or an agency of the state in which
the fund is established.
(b)(1) The standby trust agreement, or trust agreement, must be worded as
follows, except that instructions in brackets are to be replaced with the
relevant information and the brackets deleted:
TRUST AGREEMENT
Trust agreement, the "Agreement," entered into as of [date] by and between
[name of the owner or operator], a [name of state] [insert "corporation,"
"partnership," "association," or "proprietorship"], the "Grantor," and [name of
corporate trustee], [insert "Incorporated in the state of ___" or "a national
bank"], the "Trustee."
Whereas, the United States Environmental Protection Agency, "EPA," an agency
of the United States Government, has established certain regulations applicable
to the Grantor, requiring that an owner or operator of 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 standpoint
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 or operator who enters into this
Agreement and any successors or assigns of the Grantor.
(b) The term "Trustee" means the Trustee who enters into this Agreement and
any successor Trustee.Section 2. Identification of the Financial
Assurance Mechanism
This Agreement pertains to the [identify 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 [implementing agency]. 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 of the implementing agency'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 state implementing
agency]Section 4. Payment for ["Corrective Action" and/or Third-Party
Liability Claims"]
The Trustee shall make payments from the Fund as [the Director of the
implementing agency] shall direct, in writing, to provide for the payment of the
costs of [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 tanks covered by the financial assurance mechanism identified
in this 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 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 40 CFR 280.93.
The Trustee shall reimburse the Grantor, or other persons as specified by
[the Director], from the Fund for corrective action expenditures and/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 the Fund
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 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:
(i) 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;
(ii) The Trustee is authorized to invest the Fund in time or demand deposits
of the Trustee, to the extent insured by an agency of the federal or state
government; and
(iii) The Trustee is authorized to hold cash awaiting investment or
distribution uninvested for a reasonable time and without liability for the
payment of interest thereon.Section 7. Commingling and Investment
The Trustee is expressly authorized in its discretion:
(a) To transfer from time to time any or all of the assets of the Fund to any
common, commingled, or collective trust fund created by the Trustee in which the
Fund is eligible to participate, subject to all of the provisions thereof, to be
commingled with the assets of other trusts participating therein; and
(b) To purchase shares in any investment company registered under the
Investment Company Act of 1940, 15 U.S.C. 80a-1 et seq., including one which may
be created, managed, underwritten, or to which investment advice is rendered or
the shares of which are sold by the Trustee. The Trustee may vote such shares in
its discretion.Section 8. Express Powers of Trustee
Without in any way limiting the powers and discretions conferred upon the
Trustee by the other provisions of this Agreement or by law, the Trustee is
expressly authorized and empowered:
(a) To sell, exchange, convey, transfer, or otherwise dispose of any property
held by it, by public or private sale. No person dealing 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 of 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 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 the attached 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 of the implementing agency] 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 of the implementing
agency] if the Grantor ceases to exist.Section 15. Irrevocability and
Termination
Subject to the right of the parties to amend this Agreement as provided in
Section 14, this Trust shall be irrevocable and shall continue until terminated
at the written direction of the Grantor and the Trustee, or by the Trustee and
[the Director of the implementing agency], 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. Immunity and Indemnification
The Trustee shall not incur personal liability of any nature in connection
with any act or omission, made in good faith, in the administration of this
Trust, or in carrying out any directions by the Grantor or [the Director of the
implementing agency] 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 state of [insert name of state], or the Comptroller of the
Currency in the case of National Association banks.Section 18.
Interpretation
As used in this Agreement, words in the singular include the plural and words
in the plural include the singular. The descriptive headings for each section of
this Agreement shall not affect the interpretation 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 40 CFR 280.103(b)(1) as such regulations
were constituted on the date written above.
[Signature of Grantor]
[Name of the Grantor]
[Title]
Attest: [Signature of
Trustee] [Name of the
Trustee] [Title] [Seal] [Signature
of Witness] [Name of the
Witness] [Title] [Seal]
(2) The standby trust agreement, or trust agreement must be accompanied by a
formal certification of acknowledgement similar to the following. State
requirements may differ on the proper content of this acknowledgment.
State of_____ County of_____
On this [date], before me personally came [owner or operator] to me known,
who, being by me duly sworn, did depose and say that she/he resides at
[address], that she/he is [title] of [corporation], the corporation described in
and which executed the above instrument; that she/he knows the seal of said
corporation; that the seal affixed to such instrument is such corporate seal;
that it was so affixed by order of the Board of Directors of said corporation;
and that she/he signed her/his name thereto by like order.
[Signature of Notary Public] [Name of Notary
Public]
(c) The Director of the implementing agency will instruct the trustee to
refund the balance of the standby trust fund to the provider of financial
assurance if the Director determines that no additional corrective action costs
or third-party liability claims will occur as a result of a release covered by
the financial assurance mechanism for which the standby trust fund was
established.
(d) An owner or operator may establish one trust fund as the depository
mechanism for all funds assured in compliance with this rule.
[53 FR 43370, Oct. 26, 1988; 53 FR 51274, Dec. 21,
1988]
[TOP] §280.104
Local government bond rating test.
(a) A general purpose local government owner or operator and/or local
government serving as a guarantor may satisfy the requirements of §280.93 by
having a currently outstanding issue or issues of general obligation bonds of $1
million or more, excluding refunded obligations, with a Moody's rating of Aaa,
Aa, A, or Baa, or a Standard & Poor's rating of AAA, AA, A, or BBB. Where a
local government has multiple outstanding issues, or where a local government's
bonds are rated by both Moody's and Standard and Poor's, the lowest rating must
be used to determine eligibility. Bonds that are backed by credit enhancement
other than municipal bond insurance may not be considered in determining the
amount of applicable bonds outstanding.
(b) A local government owner or operator or local government serving as a
guarantor that is not a general-purpose local government and does not have the
legal authority to issue general obligation bonds may satisfy the requirements
of §280.93 by having a currently outstanding issue or issues of revenue bonds of
$1 million or more, excluding refunded issues and by also having a Moody's
rating of Aaa, A, A, or Baa, or a Standard & Poor's rating of AAA, AA, A, or
BBB as the lowest rating for any rated revenue bond issued by the local
government. Where bonds are rated by both Moody's and Standard & Poor's, the
lower rating for each bond must be used to determine eligibility. Bonds that are
backed by credit enhancement may not be considered in determining the amount of
applicable bonds outstanding.
(c) The local government owner or operator and/or guarantor must maintain a
copy of its bond rating published within the last 12 months by Moody's or
Standard & Poor's.
(d) To demonstrate that it meets the local government bond rating test, the
chief financial officer of a general purpose local government owner or operator
and/or guarantor must sign a letter worded exactly as follows, except that the
instructions in brackets are to be replaced by the relevant information and the
brackets deleted:
LETTER FROM CHIEF FINANCIAL OFFICER
I am the chief financial officer of [insert: name and address of local
government owner or operator, or guarantor]. This letter is in support of the
use of the bond rating test to demonstrate financial responsibility for [insert:
"taking corrective action" and/or "compensating third parties for bodily injury
and property damage"] caused by [insert: "sudden accidental releases" and/or
"nonsudden accidental releases"] in the amount of at least [insert: dollar
amount] per occurrence and [insert: dollar amount] annual aggregate arising from
operating (an) underground storage tank(s).
Underground storage tanks at the following facilities are assured by this
bond rating test: [List for each facility: the name and address of the facility
where tanks are assured by the bond rating test].
The details of the issue date, maturity, outstanding amount, bond rating, and
bond rating agency of all outstanding bond issues that are being used by [name
of local government owner or operator, or guarantor] to demonstrate financial
responsibility are as follows: [complete table]
----------------------------------------------------------------------------------------------------------------
Issue date Maturity date Outstanding amount Bond rating Rating agency
----------------------------------------------------------------------------------------------------------------
[Moody's or
Standard &
Poor's]
----------------------------------------------------------------------------------------------------------------
The total outstanding obligation of [insert amount], excluding refunded bond
issues, exceeds the minimum amount of $1 million. All outstanding general
obligation bonds issued by this government that have been rated by Moody's or
Standard & Poor's are rated as at least investment grade (Moody's Baa or
Standard & Poor's BBB) based on the most recent ratings published within the
last 12 months. Neither rating service has provided notification within the last
12 months of downgrading of bond ratings below investment grade or of withdrawal
of bond rating other than for repayment of outstanding bond issues.
I hereby certify that the wording of this letter is identical to the wording
specified in 40 CFR Part 280.104(d) as such regulations were constituted on the
date shown immediately below. [Date] _____ [Signature] _____ [Name] _____
[Title] _____
(e) To demonstrate that it meets the local government bond rating test, the
chief financial officer of local government owner or operator and/or guarantor
other than a general purpose government must sign a letter worded exactly as
follows, except that the instructions in brackets are to be replaced by the
relevant information and the brackets deleted:
LETTER FROM CHIEF FINANCIAL OFFICER
I am the chief financial officer of [insert: name and address of local
government owner or operator, or guarantor]. This letter is in support of the
use of the bond rating test to demonstrate financial responsibility for [insert:
"taking corrective action" and/or "compensating third parties for bodily injury
and property damage"] caused by [insert : "sudden accidental releases" and/or
"nonsudden accidental releases"] in the amount of at least [insert: dollar
amount] per occurrence and [insert: dollar amount] annual aggregate arising from
operating (an) underground storage tank(s). This local government is not
organized to provide general governmental services and does not have the legal
authority under state law or constitutional provisions to issue general
obligation debt.
Underground storage tanks at the following facilities are assured by this
bond rating test: [List for each facility: the name and address of the facility
where tanks are assured by the bond rating test].
The details of the issue date, maturity, outstanding amount, bond rating, and
bond rating agency of all outstanding revenue bond issues that are being used by
[name of local government owner or operator, or guarantor] to demonstrate
financial responsibility are as follows: [complete table]
----------------------------------------------------------------------------------------------------------------
Issue date Maturity date Outstanding amount Bond rating Rating agency
----------------------------------------------------------------------------------------------------------------
[Moody's or
Standard &
Poor's]
----------------------------------------------------------------------------------------------------------------
The total outstanding obligation of [insert amount], excluding refunded bond
issues, exceeds the minimum amount of $1 million. All outstanding revenue bonds
issued by this government that have been rated by Moody's or Standard &
Poor's are rated as at least investment grade (Moody's Baa or Standard &
Poor's BBB) based on the most recent ratings published within the last 12
months. The revenue bonds listed are not backed by third-party credit
enhancement or are insured by a municipal bond insurance company. Neither rating
service has provided notification within the last 12 months of downgrading of
bond ratings below investment grade or of withdrawal of bond rating other than
for repayment of outstanding bond issues.
I hereby certify that the wording of this letter is identical to the wording
specified in 40 CFR part 280.104(e) as such regulations were constituted on the
date shown immediately below. [Date] _____ [Signature] _____ [Name] _____
[Title] _____
(f) The Director of the implementing agency may require reports of financial
condition at any time from the local government owner or operator, and/or local
government guarantor. If the Director finds, on the basis of such reports or
other information, that the local government owner or operator, and/or
guarantor, no longer meets the local government bond rating test requirements of
§280.104, the local government owner or operator must obtain alternative
coverage within 30 days after notification of such a finding.
(g) If a local government owner or operator using the bond rating test to
provide financial assurance finds that it no longer meets the bond rating test
requirements, the local government owner or operator must obtain alternative
coverage within 150 days of the change in status.
[58 FR 9053, Feb. 18, 1993]
[TOP] §280.105
Local government financial test.
(a) A local government owner or operator may satisfy the requirements of
§280.93 by passing the financial test specified in this section. To be eligible
to use the financial test, the local government owner or operator must have the
ability and authority to assess and levy taxes or to freely establish fees and
charges. To pass the local government financial test, the owner or operator must
meet the criteria of paragraphs (b)(2) and (b)(3) of this section based on
year-end financial statements for the latest completed fiscal year.
(b)(1) The local government owner or operator must have the following
information available, as shown in the year-end financial statements for the
latest completed fiscal year:
(i) Total revenues: Consists of the sum of general fund operating and
non-operating revenues including net local taxes, licenses and permits, fines
and forfeitures, revenues from use of money and property, charges for services,
investment earnings, sales (property, publications, etc.), intergovernmental
revenues (restricted and unrestricted), and total revenues from all other
governmental funds including enterprise, debt service, capital projects, and
special revenues, but excluding revenues to funds held in a trust or agency
capacity. For purposes of this test, the calculation of total revenues shall
exclude all transfers between funds under the direct control of the local
government using the financial test (interfund transfers), liquidation of
investments, and issuance of debt.
(ii) Total expenditures: Consists of the sum of general fund operating
and non-operating expenditures including public safety, public utilities,
transportation, public works, environmental protection, cultural and
recreational, community development, revenue sharing, employee benefits and
compensation, office management, planning and zoning, capital projects, interest
payments on debt, payments for retirement of debt principal, and total
expenditures from all other governmental funds including enterprise, debt
service, capital projects, and special revenues. For purposes of this test, the
calculation of total expenditures shall exclude all transfers between funds
under the direct control of the local government using the financial test
(interfund transfers).
(iii) Local revenues: Consists of total revenues (as defined in
paragraph (b)(1)(i) of this section) minus the sum of all transfers from other
governmental entities, including all monies received from Federal, state, or
local government sources.
(iv) Debt service: Consists of the sum of all interest and principal
payments on all long-term credit obligations and all interest-bearing short-term
credit obligations. Includes interest and principal payments on general
obligation bonds, revenue bonds, notes, mortgages, judgments, and interest
bearing warrants. Excludes payments on non-interest-bearing short-term
obligations, interfund obligations, amounts owed in a trust or agency capacity,
and advances and contingent loans from other governments.
(v) Total funds: Consists of the sum of cash and investment securities
from all funds, including general, enterprise, debt service, capital projects,
and special revenue funds, but excluding employee retirement funds, at the end
of the local government's financial reporting year. Includes Federal securities,
Federal agency securities, state and local government securities, and other
securities such as bonds, notes and mortgages. For purposes of this test, the
calculation of total funds shall exclude agency funds, private trust funds,
accounts receivable, value of real property, and other non-security assets.
(vi) Population consists of the number of people in the area served by
the local government.
(2) The local government's year-end financial statements, if independently
audited, cannot include an adverse auditor's opinion or a disclaimer of opinion.
The local government cannot have outstanding issues of general obligation or
revenue bonds that are rated as less than investment grade.
(3) The local government owner or operator must have a letter signed by the
chief financial officer worded as specified in paragraph (c) of this section.
(c) To demonstrate that it meets the financial test under paragraph (b) of
this section, the chief financial officer of the local government owner or
operator, must sign, within 120 days of the close of each financial reporting
year, as defined by the twelve-month period for which financial statements used
to support the financial test are prepared, a letter worded exactly as follows,
except that the instructions in brackets are to be replaced by the relevant
information and the brackets deleted:
LETTER FROM CHIEF FINANCIAL OFFICER
I am the chief financial officer of [insert: name and address of the owner or
operator]. This letter is in support of the use of the local government
financial test to demonstrate financial responsibility for [insert: "taking
corrective action" and/or "compensating third parties for bodily injury and
property damage"] caused by [insert: "sudden accidental releases" and/or
"nonsudden accidental releases"] in the amount of at least [insert: dollar
amount] per occurrence and [insert: dollar amount] annual aggregate arising from
operating [an] underground storage tank[s].
Underground storage tanks at the following facilities are assured by this
financial test [List for each facility: the name and address of the facility
where tanks assured by this financial test are located. 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 40 CFR
Part 280.22 or the corresponding state requirements.]
This owner or operator has not received an adverse opinion, or a disclaimer
of opinion from an independent auditor on its financial statements for the
latest completed fiscal year. Any outstanding issues of general obligation or
revenue bonds, if rated, have a Moody's rating of Aaa, Aa, A, or Baa or a
Standard and Poor's rating of AAA, AA, A, or BBB; if rated by both firms, the
bonds have a Moody's rating of Aaa, Aa, A, or Baa and a Standard and Poor's
rating of AAA, AA, A, or BBB.
WORKSHEET FOR MUNICIPAL FINANCIAL TEST Part I: Basic
Information
1. Total Revenues
a. Revenues (dollars) ______ Value of revenues
excludes liquidation of investments and issuance of debt. Value includes all
general fund operating and non-operating revenues, as well as all revenues from
all other governmental funds including enterprise, debt service, capital
projects, and special revenues, but excluding revenues to funds held in a trust
or agency capacity.
b. Subtract interfund transfers (dollars)______
c. Total Revenues (dollars)______
2. Total Expenditures
a. Expenditures (dollars) ______ Value consists of
the sum of general fund operating and non-operating expenditures including
interest payments on debt, payments for retirement of debt principal, and total
expenditures from all other governmental funds including enterprise, debt
service, capital projects, and special revenues.
b. Subtract interfund transfers (dollars)______
c. Total Expenditures (dollars)______
3. Local Revenues
a. Total Revenues (from 1c) (dollars) ______
b. Subtract total intergovernmental transfers (dollars)______
c. Local Revenues (dollars)______
4. Debt Service
a. Interest and fiscal charges (dollars)______
b. Add debt retirement (dollars)______
c. Total Debt Service (dollars)______
5. Total Funds (Dollars)______
(Sum of amounts held as cash and investment securities from all funds,
excluding amounts held for employee retirement funds, agency funds, and trust
funds)
6. Population (Persons)______ Part II:
Application of Test
7. Total Revenues to Population
a. Total Revenues (from 1c)______
b. Population (from 6)______
c. Divide 7a by 7b ______
d. Subtract 417______
e. Divide by 5,212______
f. Multiply by 4.095______
8. Total Expenses to Population
a. Total Expenses (from 2c)______
b. Population (from 6)______
c. Divide 8a by 8b ______
d. Subtract 524 ______
e. Divide by 5,401______
f. Multiply by 4.095______
9. Local Revenues to Total Revenues
a. Local Revenues (from 3c)______
b. Total Revenues (from 1c)______
c. Divide 9a by 9b ______
d. Subtract .695______
e. Divide by .205______
f. Multiply by 2.840 ______
10. Debt Service to Population
a. Debt Service (from 4d) ______
b. Population (from 6)______
c. Divide 10a by 10b ______
d. Subtract 51 ______
e. Divide by 1,038______
f. Multiply by −1.866______
11. Debt Service to Total Revenues
a. Debt Service (from 4d)______
b. Total Revenues (from 1c)______
c. Divide 11a by 11b ______
d. Subtract .068 ______
e. Divide by .259 ______
f. Multiply by −3.533 ______
12. Total Revenues to Total Expenses
a. Total Revenues (from 1c)______
b. Total Expenses (from 2c)______
c. Divide 12a by 12b______
d. Subtract .910 ______
e. Divide by .899 ______
f. Multiply by 3.458 ______
13. Funds Balance to Total Revenues
a. Total Funds (from 5) ______
b. Total Revenues (from 1c)______
c. Divide 13a by 13b ______
d. Subtract .891 ______
e. Divide by 9.156______
f. Multiply by 3.270 ______
14. Funds Balance to Total Expenses
a. Total Funds (from 5)______
b. Total Expenses (from 2c)______
c. Divide 14a by 14b______
d. Subtract .866 ______
e. Divide by 6.409 ______
f. Multiply by 3.270 ______
15. Total Funds to Population ______
a. Total Funds (from 5) ______
b. Population (from 6)______
c. Divide 15a by 15b ______
d. Subtract 270 ______
e. Divide by 4,548 ______
f. Multiply by 1.866 ______
16. Add 7f + 8f + 9f + 10f + 11f + 12f + 13f + 14f + 15f +
4.937______
I hereby certify that the financial index shown on line 16 of the worksheet
is greater than zero and that the wording of this letter is identical to the
wording specified in 40 CFR part 280.105(c) as such regulations were constituted
on the date shown immediately below.
[Date]
[Signature]
[Name]
[Title]
(d) If a local government owner or operator using the test to provide
financial assurance finds that it no longer meets the requirements of the
financial test based on the year-end financial statements, the owner or operator
must obtain alternative coverage within 150 days of the end of the year for
which financial statements have been prepared.
(e) The Director of the implementing agency may require reports of financial
condition at any time from the local government owner or operator. If the
Director finds, on the basis of such reports or other information, that the
local government owner or operator no longer meets the financial test
requirements of §280.105 (b) and (c), the owner or operator must obtain
alternate coverage within 30 days after notification of such a finding.
(f) If the local government owner or operator fails to obtain alternate
assurance within 150 days of finding that it no longer meets the requirements of
the financial test based on the year-end financial statements or within 30 days
of notification by the Director of the implementing agency that it no longer
meets the requirements of the financial test, the owner or operator must notify
the Director of such failure within 10 days.
[58 FR 9054, Feb. 18, 1993]
[TOP] §280.106
Local government guarantee.
(a) A local government owner or operator may satisfy the requirements of
§280.93 by obtaining a guarantee that conforms to the requirements of this
section. The guarantor must be either the state in which the local government
owner or operator is located or a local government having a "substantial
governmental relationship" with the owner and operator and issuing the guarantee
as an act incident to that relationship. A local government acting as the
guarantor must:
(1) demonstrate that it meets the bond rating test requirement of §280.104
and deliver a copy of the chief financial officer's letter as contained in
§280.104(c) to the local government owner or operator; or
(2) demonstrate that it meets the worksheet test requirements of §280.105 and
deliver a copy of the chief financial officer's letter as contained in
§280.105(c) to the local government owner or operator; or
(3) demonstrate that it meets the local government fund requirements of
§280.107(a), §280.107(b), or §280.107(c) and deliver a copy of the chief
financial officer's letter as contained in §280.107 to the local government
owner or operator.
(b) If the local government guarantor is unable to demonstrate financial
assurance under any of §§280.104, 280.105, 280.107(a), 280.107(b), or
280.107(c), at the end of the financial reporting year, the guarantor shall send
by certified mail, before cancellation or non-renewal of the guarantee, notice
to the owner or operator. The guarantee will terminate no less than 120 days
after the date the owner or operator receives the notification, as evidenced by
the return receipt. The owner or operator must obtain alternative coverage as
specified in §280.114(c).
(c) The guarantee agreement must be worded as specified in paragraph (d) or
(e) of this section, depending on which of the following alternative guarantee
arrangements is selected:
(1) If, in the default or incapacity of the owner or operator, the guarantor
guarantees to fund a standby trust as directed by the Director of the
implementing agency, the guarantee shall be worded as specified in paragraph (d)
of this section.
(2) If, in the default or incapacity of the owner or operator, the guarantor
guarantees to make payments as directed by the Director of the implementing
agency for taking corrective action or compensating third parties for bodily
injury and property damage, the guarantee shall be worded as specified in
paragraph (e) of this section.
(d) If the guarantor is a state, the local government guarantee with standby
trust must be worded exactly as follows, except that instructions in brackets
are to be replaced with relevant information and the brackets
deleted:
Local Government Guarantee With Standby Trust Made by a
State
Guarantee made this [date] by [name of state], herein referred to as
guarantor, to [the state implementing agency] and to any and all third parties,
and obliges, on behalf of [local government owner or
operator].Recitals
(1) Guarantor is a state.
(2) [Local government owner or operator] owns or operates the following
underground storage tank(s) covered by this guarantee: [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 40 CFR
part 280 or the corresponding state requirement, and the name and address of the
facility.] This guarantee satisfies 40 CFR part 280, subpart H requirements for
assuring funding 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"; if coverage is different for different tanks or locations, indicate
the type of coverage applicable to each tank or location] arising from operating
the above-identified underground storage tank(s) in the amount of [insert dollar
amount] per occurrence and [insert dollar amount] annual aggregate.
(3) Guarantor guarantees to [implementing agency] and to any and all third
parties that:
In the event that [local government owner or operator] fails to provide
alternative coverage within 60 days after receipt of a notice of cancellation of
this guarantee and the [Director of the implementing agency] 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 40 CFR part 280.112,
in an amount not to exceed the coverage limits specified above.
In the event that the [Director] determines that [local government owner or
operator] has failed to perform corrective action for releases arising out of
the operation of the above-identified tank(s) in accordance with 40 CFR part
280, subpart F, the guarantor upon written instructions from the [Director]
shall fund a standby trust fund in accordance with the provisions of 40 CFR part
280.112, in an amount not to exceed the coverage limits specified above.
If [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 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 in accordance with the provisions of 40 CFR part 280.112 to
satisfy such judgment(s), award(s), or settlement agreement(s) up to the limits
of coverage specified above.
(4) Guarantor agrees to notify [owner or operator] 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.
(5) Guarantor agrees to remain bound under this guarantee notwithstanding any
modification or alteration of any obligation of [owner or operator] pursuant to
40 CFR part 280.
(6) Guarantor agrees to remain bound under this guarantee for so long as
[local government owner or operator] must comply with the applicable financial
responsibility requirements of 40 CFR part 280, subpart H for the above
identified tank(s), except that guarantor may cancel this guarantee by sending
notice by certified mail to [owner or operator], such cancellation to become
effective no earlier than 120 days after receipt of such notice by [owner or
operator], as evidenced by the return receipt.
(7) The guarantor's obligation does not apply to any of the following:
(a) Any obligation of [local government 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: local government owner or
operator] arising from, and in the course of, employment by [insert: local
government 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, loaded to, in the care,
custody, or control of, or occupied by [insert: local government owner or
operator] that is not the direct result of a release from a petroleum
underground storage tank;
(e) Bodily damage 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 40 CFR part 280.93.
(8) Guarantor expressly waives notice of acceptance of this guarantee by [the
implementing agency], by any or all third parties, or by [local government owner
or operator],
I hereby certify that the wording of this guarantee is identical to the
wording specified in 40 CFR part 280.106(d) 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:
If the guarantor is a local government, the local government guarantee with
standby trust must be worded exactly as follows, except that instructions in
brackets are to be replaced with relevant information and the brackets deleted:
LOCAL GOVERNMENT GUARANTEE WITH STANDBY TRUST MADE BY A LOCAL
GOVERNMENT
Guarantee made this [date] by [name of guaranteeing entity], a local
government organized under the laws of [name of state], herein referred to as
guarantor, to [the state implementing agency] and to any and all third parties,
and obliges, on behalf of [local government owner or
operator].Recitals
(1) Guarantor meets or exceeds [select one: the local government bond rating
test requirements of 40 CFR part 280.104, the local government financial test
requirements of 40 CFR part 280.105, or the local government fund under 40 CFR
part 280.107(a), 280.107(b), or 280.107(c)].
(2) [Local government owner or operator] owns or operates the following
underground storage tank(s) covered by this guarantee: [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 40 CFR
part 280 or the corresponding state requirement, and the name and address of the
facility.] This guarantee satisfies 40 CFR part 280, subpart H requirements for
assuring funding 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"; if coverage is different for different tanks or locations, indicate
the type of coverage applicable to each tank or location] arising from operating
the above-identified underground storage tank(s) in the amount of [insert dollar
amount] per occurrence and [insert: dollar amount] annual aggregate.
(3) Incident to our substantial governmental relationship with [local
government owner or operator], guarantor guarantees to [implementing agency] and
to any and all third parties that:
In the event that [local government owner or operator] fails to provide
alternative coverage within 60 days after receipt of a notice of cancellation of
this guarantee and the [Director of the implementing agency] 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 40 CFR part 280.112,
in an amount not to exceed the coverage limits specified above.
In the event that the [Director] determines that [local government owner or
operator] has failed to perform corrective action for releases arising out of
the operation of the above-identified tank(s) in accordance with 40 CFR part
280, subpart F, the guarantor upon written instructions from the [Director]
shall fund a standby trust fund in accordance with the provisions of 40 CFR part
280.112, in an amount not to exceed the coverage limits specified above.
If [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 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 in accordance with the provisions of 40 CFR part 280.112 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 or exceed the
requirements of the financial responsibility mechanism specified in paragraph
(1), guarantor shall send within 120 days of such failure, by certified mail,
notice to [local government owner or operator], as evidenced by the return
receipt.
(5) Guarantor agrees to notify [owner or operator] 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.
(6) Guarantor agrees to remain bound under this guarantee notwithstanding any
modification or alteration of any obligation of [owner or operator] pursuant to
40 CFR part 280.
(7) Guarantor agrees to remain bound under this guarantee for so long as
[local government owner or operator] must comply with the applicable financial
responsibility requirements of 40 CFR part 280, subpart H for the above
identified tank(s), except that guarantor may cancel this guarantee by sending
notice by certified mail to [owner or operator], such cancellation to become
effective no earlier than 120 days after receipt of such notice by [owner or
operator], as evidenced by the return receipt.
(8) The guarantor's obligation does not apply to any of the following:
(a) Any obligation of [local government 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: local government owner or
operator] arising from, and in the course of, employment by [insert: local
government 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: local government owner or
operator] that is not the direct result of a release from a petroleum
underground storage tank;
(e) Bodily damage 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 40 CFR part 280.93.
(9) Guarantor expressly waives notice of acceptance of this guarantee by [the
implementing agency], by any or all third parties, or by [local government owner
or operator].
I hereby certify that the wording of this guarantee is identical to the
wording specified in 40 CFR part 280.106(d) 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: _____
(e) If the guarantor is a state, the local government guarantee without
standby trust must be worded exactly as follows, except that instructions in
brackets are to be replaced with relevant information and the brackets
deleted:
LOCAL GOVERNMENT GUARANTEE WITHOUT STANDBY TRUST MADE BY A
STATE
Guarantee made this [date] by [name of state], herein referred to as
guarantor, to [the state implementing agency] and to any and all third parties,
and obliges, on behalf of [local government owner or
operator].Recitals
(1) Guarantor is a state.
(2) [Local government owner or operator] owns or operates the following
underground storage tank(s) covered by this guarantee: [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 40 CFR
part 280 or the corresponding state requirement, and the name and address of the
facility.] This guarantee satisfies 40 CFR part 280, subpart H requirements for
assuring funding 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"; if coverage is different for different tanks or locations, indicate
the type of coverage applicable to each tank or location] arising from operating
the above-identified underground storage tank(s) in the amount of [insert:
dollar amount] per occurrence and [insert: dollar amount] annual aggregate.
(3) Guarantor guarantees to [implementing agency] and to any and all third
parties and obliges that:
In the event that [local government owner or operator] fails to provide
alternative coverage within 60 days after receipt of a notice of cancellation of
this guarantee and the [Director of the implementing agency] has determined or
suspects that a release has occurred at an underground storage tank covered by
this guarantee, the guarantor, upon written instructions from the [Director]
shall make funds available to pay for corrective actions and compensate third
parties for bodily injury and property damage in an amount not to exceed the
coverage limits specified above.
In the event that the [Director] determines that [local government owner or
operator] has failed to perform corrective action for releases arising out of
the operation of the above-identified tank(s) in accordance with 40 CFR part
280, subpart F, the guarantor upon written instructions from the [Director]
shall make funds available to pay for corrective actions in an amount not to
exceed the coverage limits specified above.
If [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 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 make
funds available to compensate third parties for bodily injury and property
damage in an amount not to exceed the coverage limits specified above.
(4) Guarantor agrees to notify [owner or operator] 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.
(5) Guarantor agrees to remain bound under this guarantee notwithstanding any
modification or alteration of any obligation of [owner or operator] pursuant to
40 CFR part 280.
(6) Guarantor agrees to remain bound under this guarantee for so long as
[local government owner or operator] must comply with the applicable financial
responsibility requirements of 40 CFR part 280, subpart H for the above
identified tank(s), except that guarantor may cancel this guarantee by sending
notice by certified mail to [owner or operator], such cancellation to become
effective no earlier than 120 days after receipt of such notice by [owner or
operator], as evidenced by the return receipt. If notified of a probable
release, the guarantor agrees to remain bound to the terms of this guarantee for
all charges arising from the release, up to the coverage limits specified above,
notwithstanding the cancellation of the guarantee with respect to future
releases.
(7) The guarantor's obligation does not apply to any of the following:
(a) Any obligation of [local government 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 local government owner or
operator] arising from, and in the course of, employment by [insert: local
government 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, loaded to, in the care,
custody, or control of, or occupied by [insert: local government owner or
operator] that is not the direct result of a release from a petroleum
underground storage tank;
(e) Bodily damage 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 40 CFR part 280.93.
(8) Guarantor expressly waives notice of acceptance of this guarantee by [the
implementing agency], by any or all third parties, or by [local government owner
or operator].
I hereby certify that the wording of this guarantee is identical to the
wording specified in 40 CFR part 280.106(e) 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:
If the guarantor is a local government, the local government guarantee
without standby trust must be worded exactly as follows, except that
instructions in brackets are to be replaced with relevant information and the
brackets deleted:
LOCAL GOVERNMENT GUARANTEE WITHOUT STANDBY TRUST MADE BY A LOCAL
GOVERNMENT
Guarantee made this [date] by [name of guaranteeing entity], a local
government organized under the laws of [name of state], herein referred to as
guarantor, to [the state implementing agency] and to any and all third parties,
and obliges, on behalf of [local government owner or
operator].Recitals
(1) Guarantor meets or exceeds [select one: the local government bond rating
test requirements of 40 CFR part 280.104, the local government financial test
requirements of 40 part CFR 280.105, the local government fund under 40 CFR part
280.107(a), 280.107(b), or 280.107(c).
(2) [Local government owner or operator] owns or operates the following
underground storage tank(s) covered by this guarantee: [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 40 CFR
part 280 or the corresponding state requirement, and the name and address of the
facility.] This guarantee satisfies 40 CFR part 280, subpart H requirements for
assuring funding 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"; if coverage is different for different tanks or locations, indicate
the type of coverage applicable to each tank or location] arising from operating
the above-identified underground storage tank(s) in the amount of [insert:
dollar amount] per occurrence and [insert: dollar amount] annual aggregate.
(3) Incident to our substantial governmental relationship with [local
government owner or operator], guarantor guarantees to [implementing agency] and
to any and all third parties and obliges that:
In the event that [local government owner or operator] fails to provide
alternative coverage within 60 days after receipt of a notice of cancellation of
this guarantee and the [Director of the implementing agency] has determined or
suspects that a release has occurred at an underground storage tank covered by
this guarantee, the guarantor, upon written instructions from the [Director]
shall make funds available to pay for corrective actions and compensate third
parties for bodily injury and property damage in an amount not to exceed the
coverage limits specified above.
In the event that the [Director] determines that [local government owner or
operator] has failed to perform corrective action for releases arising out of
the operation of the above-identified tank(s) in accordance with 40 CFR part
280, subpart F, the guarantor upon written instructions from the [Director]
shall make funds available to pay for corrective actions in an amount not to
exceed the coverage limits specified above.
If [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 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 make
funds available to compensate third parties for bodily injury and property
damage in an amount not to exceed the coverage limits specified above.
(4) Guarantor agrees that if at the end of any fiscal year before
cancellation of this guarantee, the guarantor fails to meet or exceed the
requirements of the financial responsibility mechanism specified in paragraph
(1), guarantor shall send within 120 days of such failure, by certified mail,
notice to [local government owner or operator], as evidenced by the return
receipt.
(5) Guarantor agrees to notify [owner or operator] 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.
(6) Guarantor agrees to remain bound under this guarantee notwithstanding any
modification or alteration of any obligation of [owner or operator] pursuant to
40 CFR part 280.
(7) Guarantor agrees to remain bound under this guarantee for so long as
[local government owner or operator] must comply with the applicable financial
responsibility requirements of 40 CFR part 280, subpart H for the above
identified tank(s), except that guarantor may cancel this guarantee by sending
notice by certified mail to [owner or operator], such cancellation to become
effective no earlier than 120 days after receipt of such notice by [owner or
operator], as evidenced by the return receipt. If notified of a probable
release, the guarantor agrees to remain bound to the terms of this guarantee for
all charges arising from the release, up to the coverage limits specified above,
notwithstanding the cancellation of the guarantee with respect to future
releases.
(8) The guarantor's obligation does not apply to any of the following:
(a) Any obligation of [local government 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: local government owner or
operator] arising from, and in the course of, employment by [insert: local
government 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, loaded to, in the care,
custody, or control of, or occupied by [insert: local government owner or
operator] that is not the direct result of a release from a petroleum
underground storage tank;
(e) Bodily damage 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 40 CFR part 280.93.
(9) Guarantor expressly waives notice of acceptance of this guarantee by [the
implementing agency], by any or all third parties, or by [local government owner
or operator],
I hereby certify that the wording of this guarantee is identical to the
wording specified in 40 CFR part 280.106(e) 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:
[58 FR 9056, Feb. 18, 1993]
[TOP] §280.107
Local government fund.
A local government owner or operator may satisfy the requirements of §280.93
by establishing a dedicated fund account that conforms to the requirements of
this section. Except as specified in paragraph (b), a dedicated fund may not be
commingled with other funds or otherwise used in normal operations. A dedicated
fund will be considered eligible if it meets one of the following requirements:
(a) The fund is dedicated by state constitutional provision, or local
government statute, charter, ordinance, or order to pay for taking corrective
action and for compensating third parties for bodily injury and property damage
caused by accidental releases arising from the operation of petroleum
underground storage tanks and is funded for the full amount of coverage required
under §280.93, or funded for part of the required amount of coverage and used in
combination with other mechanism(s) that provide the remaining coverage; or
(b) The fund is dedicated by state constitutional provision, or local
government statute, charter, ordinance, or order as a contingency fund for
general emergencies, including taking corrective action and compensating third
parties for bodily injury and property damage caused by accidental releases
arising from the operation of petroleum underground storage tanks, and is funded
for five times the full amount of coverage required under §280.93, or funded for
part of the required amount of coverage and used in combination with other
mechanism(s) that provide the remaining coverage. If the fund is funded for less
than five times the amount of coverage required under §280.93, the amount of
financial responsibility demonstrated by the fund may not exceed one-fifth the
amount in the fund; or
(c) The fund is dedicated by state constitutional provision, or local
government statute, charter, ordinance or order to pay for taking corrective
action and for compensating third parties for bodily injury and property damage
caused by accidental releases arising from the operation of petroleum
underground storage tanks. A payment is made to the fund once every year for
seven years until the fund is fully-funded. This seven year period is hereafter
referred to as the "pay-in-period." The amount of each payment must be
determined by this formula:
TF-CF
-------------
Y
------------------------------------------------------------------------
Where TF is the total required financial assurance for the owner or operator,
CF is the current amount in the fund, and Y is the number of years remaining in
the pay-in-period, and;
(1) The local government owner or operator has available bonding authority,
approved through voter referendum (if such approval is necessary prior to the
issuance of bonds), for an amount equal to the difference between the required
amount of coverage and the amount held in the dedicated fund. This bonding
authority shall be available for taking corrective action and for compensating
third parties for bodily injury and property damage caused by accidental
releases arising from the operation of petroleum underground storage tanks, or
(2) The local government owner or operator has a letter signed by the
appropriate state attorney general stating that the use of the bonding authority
will not increase the local government's debt beyond the legal debt ceilings
established by the relevant state laws. The letter must also state that prior
voter approval is not necessary before use of the bonding authority.
(d) To demonstrate that it meets the requirements of the local government
fund, the chief financial officer of the local government owner or operator
and/or guarantor must sign a letter worded exactly as follows, except that the
instructions in brackets are to be replaced by the relevant information and the
brackets deleted:
LETTER FROM CHIEF FINANCIAL OFFICER
I am the chief financial officer of [insert: name and address of local
government owner or operator, or guarantor]. This letter is in support of the
use of the local government fund mechanism to demonstrate financial
responsibility for [insert: "taking corrective action" and/or "compensating
third parties for bodily injury and property damage"] caused by [insert: "sudden
accidental releases" and/or "nonsudden accidental releases"] in the amount of at
least [insert: dollar amount] per occurrence and [insert: dollar amount] annual
aggregate arising from operating (an) underground storage tank(s).
Underground storage tanks at the following facilities are assured by this
local government fund mechanism: [List for each facility: the name and address
of the facility where tanks are assured by the local government fund].
[Insert: "The local government fund is funded for the full amount of coverage
required under §280.93, or funded for part of the required amount of coverage
and used in combination with other mechanism(s) that provide the remaining
coverage." or "The local government fund is funded for ten times the full amount
of coverage required under §280.93, or funded for part of the required amount of
coverage and used in combination with other mechanisms(s) that provide the
remaining coverage," or "A payment is made to the fund once every year for seven
years until the fund is fully-funded and [name of local government owner or
operator] has available bonding authority, approved through voter referendum, of
an amount equal to the difference between the required amount of coverage and
the amount held in the dedicated fund" or "A payment is made to the fund once
every year for seven years until the fund is fully-funded and I have attached a
letter signed by the State Attorney General stating that (1) the use of the
bonding authority will not increase the local government's debt beyond the legal
debt ceilings established by the relevant state laws and (2) that prior voter
approval is not necessary before use of the bonding authority"].
The details of the local government fund are as follows: Amount in Fund
(market value of fund at close of last fiscal year):_____
[If fund balance is incrementally funded as specified in §280.107(c), insert:
Amount added to fund in the most recently completed fiscal year: _____
Number of years remaining in the pay-in period: ____]
A copy of the state constitutional provision, or local government statute,
charter, ordinance or order dedicating the fund is attached.
I hereby certify that the wording of this letter is identical to the wording
specified in 40 CFR 280.107(d) as such regulations were constituted on the date
shown immediately below.
[Date]
[Signature]
[Name]
[Title]
[58 FR 9059, Feb. 18, 1993]
[TOP] §280.108
Substitution of financial assurance mechanisms by owner or operator.
(a) An owner or operator may substitute any alternate financial assurance
mechanisms as specified in this subpart, provided that at all times he maintains
an effective financial assurance mechanism or combination of mechanisms that
satisfies the requirements of §280.93.
(b) After obtaining alternate financial assurance as specified in this
subpart, an owner or operator may cancel a financial assurance mechanism by
providing notice to the provider of financial assurance.
[53 FR 43370, Oct. 26, 1988. Redesignated at 58 FR 9051, Feb. 18,
1993]
[TOP] §280.109
Cancellation or nonrenewal by a provider of financial
assurance.
(a) Except as otherwise provided, a provider of financial assurance may
cancel or fail to renew an assurance mechanism by sending a notice of
termination by certified mail to the owner or operator.
(1) Termination of a local government guarantee, a guarantee, a surety bond,
or a letter of credit may not occur until 120 days after the date on which the
owner or operator receives the notice of termination, as evidenced by the return
receipt.
(2) Termination of insurance or risk retention coverage, except for
non-payment or misrepresentation by the insured, or state-funded assurance may
not occur until 60 days after the date on which the owner or operator receives
the notice of termination, as evidenced by the return receipt. Termination for
non-payment of premium or misrepresentation by the insured may not occur until a
minimum of 10 days after the date on which the owner or operator receives the
notice of termination, as evidenced by the return receipt.
(b) If a provider of financial responsibility cancels or fails to renew for
reasons other than incapacity of the provider as specified in §280.114, the
owner or operator must obtain alternate coverage as specified in this section
within 60 days after receipt of the notice of termination. If the owner or
operator fails to obtain alternate coverage within 60 days after receipt of the
notice of termination, the owner or operator must notify the Director of the
implementing agency of such failure and submit:
(1) The name and address of the provider of financial assurance;
(2) The effective date of termination; and
(3) The evidence of the financial assistance mechanism subject to the
termination maintained in accordance with §280.107(b).
[58 FR 9051, Feb. 18, 1993]
[TOP] §280.110
Reporting by owner or operator.
(a) An owner or operator must submit the appropriate forms listed in
§280.111(b) documenting current evidence of financial responsibility to the
Director of the implementing agency:
(1) Within 30 days after the owner or operator identifies a release from an
underground storage tank required to be reported under §280.53 or §280.61;
(2) If the owner or operator fails to obtain alternate coverage as required
by this subpart, within 30 days after the owner or operator receives notice of:
(i) Commencement of a voluntary or involuntary proceeding under Title 11
(Bankruptcy), U.S. Code, naming a provider of financial assurance as a debtor,
(ii) Suspension or revocation of the authority of a provider of financial
assurance to issue a financial assurance mechanism,
(iii) Failure of a guarantor to meet the requirements of the financial test,
(iv) Other incapacity of a provider of financial assurance; or
(3) As required by §280.95(g) and §280.109(b).
(b) An owner or operator must certify compliance with the financial
responsibility requirements of this part as specified in the new tank
notification form when notifying the appropriate state or local agency of the
installation of a new underground storage tank under §280.22.
(c) The Director of the Implementing Agency may require an owner or operator
to submit evidence of financial assurance as described in §280.111(b) or other
information relevant to compliance with this subpart at any time.
[58 FR 9051, Feb. 18, 1993]
[TOP] §280.111
Recordkeeping.
(a) Owners or operators must maintain evidence of all financial assurance
mechanisms used to demonstrate financial responsibility under this subpart for
an underground storage tank until released from the requirements of this subpart
under §208.113. An owner or operator must maintain such evidence at the
underground storage tank site or the owner's or operator's place of work.
Records maintained off-site must be made available upon request of the
implementing agency.
(b) An owner or operator must maintain the following types of evidence of
financial responsibility:
(1) An owner or operator using an assurance mechanism specified in §§280.95
through 280.100 or §280.102 or §§280.104 through 280.107 must maintain a copy of
the instrument worded as specified.
(2) An owner or operator using a financial test or guarantee, or a local
government financial test or a local government guarantee supported by the local
government financial test must maintain a copy of the chief financial officer's
letter based on year-end financial statements for the most recent completed
financial reporting year. Such evidence must be on file no later than 120 days
after the close of the financial reporting year.
(3) An owner or operator using a guarantee, surety bond, or letter of credit
must maintain a copy of the signed standby trust fund agreement and copies of
any amendments to the agreement.
(4) A local government owner or operator using a local government guarantee
under §280.106(d) must maintain a copy of the signed standby trust fund
agreement and copies of any amendments to the agreement.
(5) A local government owner or operator using the local government bond
rating test under §280.104 must maintain a copy of its bond rating published
within the last twelve months by Moody's or Standard & Poor's.
(6) A local government owner or operator using the local government guarantee
under §280.106, where the guarantor's demonstration of financial responsibility
relies on the bond rating test under §280.104 must maintain a copy of the
guarantor's bond rating published within the last twelve months by Moody's or
Standard & Poor's.
(7) An owner or operator using an insurance policy or risk retention group
coverage must maintain a copy of the signed insurance policy or risk retention
group coverage policy, with the endorsement or certificate of insurance and any
amendments to the agreements.
(8) An owner or operator covered by a state fund or other state assurance
must maintain on file a copy of any evidence of coverage supplied by or required
by the state under §280.101(d).
(9) An owner or operator using a local government fund under §280.107 must
maintain the following documents:
(i) A copy of the state constitutional provision or local government statute,
charter, ordinance, or order dedicating the fund, and
(ii) Year-end financial statements for the most recent completed financial
reporting year showing the amount in the fund. If the fund is established under
§280.107(a)(3) using incremental funding backed by bonding authority, the
financial statements must show the previous year's balance, the amount of
funding during the year, and the closing balance in the fund.
(iii) If the fund is established under §280.107(a)(3) using incremental
funding backed by bonding authority, the owner or operator must also maintain
documentation of the required bonding authority, including either the results of
a voter referendum (under §280.107(a)(3)(i)), or attestation by the State
Attorney General as specified under §280.107(a)(3)(ii).
(10) A local government owner or operator using the local government
guarantee supported by the local government fund must maintain a copy of the
guarantor's year-end financial statements for the most recent completed
financial reporting year showing the amount of the fund.
(11)(i) An owner or operator using an assurance mechanism specified in
§§280.95 through 280.107 must maintain an updated copy of a certification of
financial responsibility worded as follows, except that instructions in brackets
are to be replaced with the relevant information and the brackets deleted:
Certification of Financial Responsibility
[Owner or operator] hereby certifies that it is in compliance with the
requirements of subpart H of 40 CFR part 280.
The financial assurance mechanism(s) used to demonstrate financial
responsibility under subpart H of 40 CFR part 280 is (are) as follows:
[For each mechanism, list the type of mechanism, name of issuer, mechanism
number (if applicable), amount of coverage, effective period of coverage and
whether the mechanism covers "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."]
[Signature of owner or operator]
[Name of owner or operator]
[Title]
[Date]
[Signature of witness or notary]
[Name of witness or notary]
[Date]
(ii) The owner or operator must update this certification whenever the
financial assurance mechanism(s) used to demonstrate financial responsibility
change(s).
[58 FR 9051, Feb. 18, 1993]
[TOP] §280.112
Drawing on financial assurance mechanisms.
(a) Except as specified in paragraph (d) of this section, the Director of the
implementing agency shall require the guarantor, surety, or institution issuing
a letter of credit to place the amount of funds stipulated by the Director, up
to the limit of funds provided by the financial assurance mechanism, into the
standby trust if:
(1)(i) The owner or operator fails to establish alternate financial assurance
within 60 days after receiving notice of cancellation of the guarantee, surety
bond, letter of credit, or, as applicable, other financial assurance mechanism;
and
(ii) The Director determines or suspects that a release from an underground
storage tank covered by the mechanism has occurred and so notifies the owner or
operator or the owner or operator has notified the Director pursuant to subparts
E or F of a release from an underground storage tank covered by the mechanism;
or
(2) The conditions of paragraph (b)(1) or (b)(2) (i) or (ii) of this section
are satisfied.
(b) The Director of the implementing agency may draw on a standby trust fund
when:
(1) The Director makes a final determination that a release has occurred and
immediate or long-term corrective action for the release is needed, and the
owner or operator, after appropriate notice and opportunity to comply, has not
conducted corrective action as required under 40 CFR part 280, subpart F; or
(2) The Director has received either:
(i) Certification from the owner or operator and the third-party liability
claimant(s) and from attorneys representing the owner or operator and the
third-party liability claimant(s) that a third-party 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 principals and as legal representatives of [insert: owner
or operator] and [insert: name and address of third-party claimant], hereby
certify that the claim of bodily injury [and/or] property damage caused by an
accidental release arising from operating [owner's or operator's] underground
storage tank should be paid in the amount of $[______].
[Signatures] Owner or
Operator Attorney for Owner or
Operator (Notary) Date
[Signatures] Claimant(s) Attorney(s)
for
Claimant(s) (Notary) Date
or (ii) A valid final court order establishing a judgment against the owner
or operator for bodily injury or property damage caused by an accidental release
from an underground storage tank covered by financial assurance under this
subpart and the Director determines that the owner or operator has not satisfied
the judgment.
(c) If the Director of the implementing agency determines that the amount of
corrective action costs and third-party liability claims eligible for payment
under paragraph (b) of this section may exceed the balance of the standby trust
fund and the obligation of the provider of financial assurance, the first
priority for payment shall be corrective action costs necessary to protect human
health and the environment. The Director shall pay third-party liability claims
in the order in which the Director receives certifications under paragraph
(b)(2)(i) of this section, and valid court orders under paragraph (b)(2)(ii) of
this section.
(d) A governmental entity acting as guarantor under §280.106(e), the local
government guarantee without standby trust, shall make payments as directed by
the Director under the circumstances described in §280.112 (a), (b), and (c).
[58 FR 9052, Feb. 18, 1993]
[TOP] §280.113
Release from the requirements.
An owner or operator is no longer required to maintain financial
responsibility under this subpart for an underground storage tank after the tank
has been properly closed or, if corrective action is required, after corrective
action has been completed and the tank has been properly closed as required by
40 CFR part 280, subpart G.
[53 FR 43370, Oct. 26, 1988. Redesignated at 58 FR 9051, Feb. 18,
1993]
[TOP] §280.114
Bankruptcy or other incapacity of owner or operator or
provider of financial assurance.
(a) Within 10 days after commencement of a voluntary or involuntary
proceeding under Title 11 (Bankruptcy), U.S. Code, naming an owner or operator
as debtor, the owner or operator must notify the Director of the implementing
agency by certified mail of such commencement and submit the appropriate forms
listed in §280.111(b) documenting current financial responsibility.
(b) Within 10 days after commencement of a voluntary or involuntary
proceeding under Title 11 (Bankruptcy), U.S. Code, naming a guarantor providing
financial assurance as debtor, such guarantor must notify the owner or operator
by certified mail of such commencement as required under the terms of the
guarantee specified in §280.96.
(c) Within 10 days after commencement of a voluntary or involuntary
proceeding under Title 11 (Bankruptcy), U.S. Code, naming a local government
owner or operator as debtor, the local government owner or operator must notify
the Director of the implementing agency by certified mail of such commencement
and submit the appropriate forms listed in §280.111(b) documenting current
financial responsibility.
(d) Within 10 days after commencement of a voluntary or involuntary
proceeding under Title 11 (Bankruptcy), U.S. Code, naming a guarantor providing
a local government financial assurance as debtor, such guarantor must notify the
local government owner or operator by certified mail of such commencement as
required under the terms of the guarantee specified in §280.106.
(e) An owner or operator who obtains financial assurance by a mechanism other
than the financial test of self-insurance will 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, letter of credit, or
state-required mechanism. The owner or operator must obtain alternate financial
assurance as specified in this subpart within 30 days after receiving notice of
such an event. If the owner or operator does not obtain alternate coverage
within 30 days after such notification, he must notify the Director of the
implementing agency.
(f) Within 30 days after receipt of notification that a state fund or other
state assurance has become incapable of paying for assured corrective action or
third-party compensation costs, the owner or operator must obtain alternate
financial assurance.
[58 FR 9053, Feb. 18, 1993]
[TOP] §280.115
Replenishment of guarantees, letters of credit, or surety
bonds.
(a) If at any time after a standby trust is funded upon the instruction of
the Director of the implementing agency with funds drawn from a guarantee, local
government guarantee with standby trust, letter of credit, or surety bond, and
the amount in the standby trust is reduced below the full amount of coverage
required, the owner or operator shall by the anniversary date of the financial
mechanism from which the funds were drawn:
(1) Replenish the value of financial assurance to equal the full amount of
coverage required, or
(2) Acquire another financial assurance mechanism for the amount by which
funds in the standby trust have been reduced.
(b) For purposes of this section, the full amount of coverage required is the
amount of coverage to be provided by §280.93 of this subpart. If a combination
of mechanisms was used to provide the assurance funds which were drawn upon,
replenishment shall occur by the earliest anniversary date among the mechanisms.
[58 FR 9053, Feb. 18, 1993]
[TOP] §280.116
Suspension of enforcement. [Reserved]
Subpart I -- Lender Liability
Source: 60
FR 46711 , Sept. 7, 1995, unless otherwise noted.
[TOP] §280.200
Definitions.
(a) UST technical standards, as used in this subpart, refers to the
UST preventative and operating requirements under 40 CFR part 280, subparts B,
C, D, G, and §280.50 of subpart E.
(b) Petroleum production, refining, and marketing.
(1) Petroleum production means the production of crude oil or other
forms of petroleum (as defined in §280.12) as well as the production of
petroleum products from purchased materials.
(2) Petroleum refining means the cracking, distillation, separation,
conversion, upgrading, and finishing of refined petroleum or petroleum products.
(3) Petroleum marketing means the distribution, transfer, or sale of
petroleum or petroleum products for wholesale or retail purposes.
(c) Indicia of ownership means evidence of a secured interest,
evidence of an interest in a security interest, or evidence of an interest in
real or personal property securing a loan or other obligation, including any
legal or equitable title or deed to real or personal property acquired through
or incident to foreclosure. Evidence of such interests include, but are not
limited to, mortgages, deeds of trust, liens, surety bonds and guarantees of
obligations, title held pursuant to a lease financing transaction in which the
lessor does not select initially the leased property (hereinafter "lease
financing transaction"), and legal or equitable title obtained pursuant to
foreclosure. Evidence of such interests also includes assignments, pledges, or
other rights to or other forms of encumbrance against property that are held
primarily to protect a security interest. A person is not required to hold title
or a security interest in order to maintain indicia of ownership.
(d) A holder is a person who, upon the effective date of this
regulation or in the future, maintains indicia of ownership (as defined in
§280.200(c)) primarily to protect a security interest (as defined in
§280.200(f)(1)) in a petroleum UST or UST system or facility or property on
which a petroleum UST or UST system is located. A holder includes the initial
holder (such as a loan originator); any subsequent holder (such as a
successor-in-interest or subsequent purchaser of the security interest on the
secondary market); a guarantor of an obligation, surety, or any other person who
holds ownership indicia primarily to protect a security interest; or a receiver
or other person who acts on behalf or for the benefit of a holder.
(e) A borrower, debtor, or obligor is a person whose UST or UST system
or facility or property on which the UST or UST system is located is encumbered
by a security interest. These terms may be used interchangeably.
(f) Primarily to protect a security interest means that the holder's
indicia of ownership are held primarily for the purpose of securing payment or
performance of an obligation.
(1) Security interest means an interest in a petroleum UST or UST
system or in the facility or property on which a petroleum UST or UST system is
located, created or established for the purpose of securing a loan or other
obligation. Security interests include but are not limited to mortgages, deeds
of trusts, liens, and title pursuant to lease financing transactions. Security
interests may also arise from transactions such as sale and leasebacks,
conditional sales, installment sales, trust receipt transactions, certain
assignments, factoring agreements, accounts receivable financing arrangements,
and consignments, if the transaction creates or establishes an interest in an
UST or UST system or in the facility or property on which the UST or UST system
is located, for the purpose of securing a loan or other obligation.
(2) Primarily to protect a security interest, as used in this subpart,
does not include indicia of ownership held primarily for investment purposes,
nor ownership indicia held primarily for purposes other than as protection for a
security interest. A holder may have other, secondary reasons for maintaining
indicia of ownership, but the primary reason why any ownership indicia are held
must be as protection for a security interest.
(g) Operation means, for purposes of this subpart, the use, storage,
filling, or dispensing of petroleum contained in an UST or UST system.
[TOP] §280.210
Participation in management.
The term "participating in the management of an UST or UST system" means
that, subsequent to the effective date of this subpart, December 6, 1995, the
holder is engaging in decisionmaking control of, or activities related to,
operation of the UST or UST system, as defined herein.
(a) Actions that are participation in management.
(1) Participation in the management of an UST or UST system means, for
purposes of this subpart, actual participation by the holder in the management
or control of decisionmaking related to the operation of an UST or UST system.
Participation in management does not include the mere capacity or ability to
influence or the unexercised right to control UST or UST system operations. A
holder is participating in the management of the UST or UST system only if the
holder either:
(i) Exercises decisionmaking control over the operational (as opposed to
financial or administrative) aspects of the UST or UST system, such that the
holder has undertaken responsibility for all or substantially all of the
management of the UST or UST system; or
(ii) Exercises control at a level comparable to that of a manager of the
borrower's enterprise, such that the holder has assumed or manifested
responsibility for the overall management of the enterprise encompassing the
day-to-day decisionmaking of the enterprise with respect to all, or
substantially all, of the operational (as opposed to financial or
administrative) aspects of the enterprise.
(2) Operational aspects of the enterprise relate to the use, storage,
filling, or dispensing of petroleum contained in an UST or UST system, and
include functions such as that of a facility or plant manager, operations
manager, chief operating officer, or chief executive officer. Financial or
administrative aspects include functions such as that of a credit manager,
accounts payable/receivable manager, personnel manager, controller, chief
financial officer, or similar functions. Operational aspects of the enterprise
do not include the financial or administrative aspects of the enterprise, or
actions associated with environmental compliance, or actions undertaken
voluntarily to protect the environment in accordance with applicable
requirements in 40 CFR part 280 or applicable state requirements in those states
that have been delegated authority by EPA to administer the UST program pursuant
to 42 USC 6991c and 40 CFR part 281.
(b) Actions that are not participation in management pre-foreclosure.
(1) Actions at the inception of the loan or other transaction. No act or
omission prior to the time that indicia of ownership are held primarily to
protect a security interest constitutes evidence of participation in management
within the meaning of this subpart. A prospective holder who undertakes or
requires an environmental investigation (which could include a site assessment,
inspection, and/or audit) of the UST or UST system or facility or property on
which the UST or UST system is located (in which indicia of ownership are to be
held), or requires a prospective borrower to clean up contamination from the UST
or UST system or to comply or come into compliance (whether prior or subsequent
to the time that indicia of ownership are held primarily to protect a security
interest) with any applicable law or regulation, is not by such action
considered to be participating in the management of the UST or UST system or
facility or property on which the UST or UST system is located.
(2) Loan policing and work out. Actions that are consistent with holding
ownership indicia primarily to protect a security interest do not constitute
participation in management for purposes of this subpart. The authority for the
holder to take such actions may, but need not, be contained in contractual or
other documents specifying requirements for financial, environmental, and other
warranties, covenants, conditions, representations or promises from the
borrower. Loan policing and work out activities cover and include all such
activities up to foreclosure, exclusive of any activities that constitute
participation in management.
(i) Policing the security interest or loan.
(A) A holder who engages in policing activities prior to foreclosure will
remain within the exemption provided that the holder does not together with
other actions participate in the management of the UST or UST system as provided
in §280.210(a). Such policing actions include, but are not limited to, requiring
the borrower to clean up contamination from the UST or UST system during the
term of the security interest; requiring the borrower to comply or come into
compliance with applicable federal, state, and local environmental and other
laws, rules, and regulations during the term of the security interest; securing
or exercising authority to monitor or inspect the UST or UST system or facility
or property on which the UST or UST system is located (including on-site
inspections) in which indicia of ownership are maintained, or the borrower's
business or financial condition during the term of the security interest; or
taking other actions to adequately police the loan or security interest (such as
requiring a borrower to comply with any warranties, covenants, conditions,
representations, or promises from the borrower).
(B) Policing activities also include undertaking by the holder of UST
environmental compliance actions and voluntary environmental actions taken in
compliance with 40 CFR part 280, provided that the holder does not otherwise
participate in the management or daily operation of the UST or UST system as
provided in §280.210(a) and §280.230. Such allowable actions include, but are
not limited to, release detection and release reporting, release response and
corrective action, temporary or permanent closure of an UST or UST system, UST
upgrading or replacement, and maintenance of corrosion protection. A holder who
undertakes these actions must do so in compliance with the applicable
requirements in 40 CFR part 280 or applicable state requirements in those states
that have been delegated authority by EPA to administer the UST program pursuant
to 42 U.S.C. 6991c and 40 CFR part 281. A holder may directly oversee these
environmental compliance actions and voluntary environmental actions, and
directly hire contractors to perform the work, and is not by such action
considered to be participating in the management of the UST or UST system.
(ii) Loan work out. A holder who engages in work out activities prior to
foreclosure will remain within the exemption provided that the holder does not
together with other actions participate in the management of the UST or UST
system as provided in §280.210(a). For purposes of this rule, "work out" refers
to those actions by which a holder, at any time prior to foreclosure, seeks to
prevent, cure, or mitigate a default by the borrower or obligor; or to preserve,
or prevent the diminution of, the value of the security. Work out activities
include, but are not limited to, restructuring or renegotiating the terms of the
security interest; requiring payment of additional rent or interest; exercising
forbearance; requiring or exercising rights pursuant to an assignment of
accounts or other amounts owing to an obligor; requiring or exercising rights
pursuant to an escrow agreement pertaining to amounts owing to an obligor;
providing specific or general financial or other advice, suggestions,
counseling, or guidance; and exercising any right or remedy the holder is
entitled to by law or under any warranties, covenants, conditions,
representations, or promises from the borrower.
(c) Foreclosure on an UST or UST system or facility or property on which an
UST or UST system is located, and participation in management activities
post-foreclosure.
(1) Foreclosure. (i) Indicia of ownership that are held primarily to protect
a security interest include legal or equitable title or deed to real or personal
property acquired through or incident to foreclosure. For purposes of this
subpart, the term "foreclosure" means that legal, marketable or equitable title
or deed has been issued, approved, and recorded, and that the holder has
obtained access to the UST, UST system, UST facility, and property on which the
UST or UST system is located, provided that the holder acted diligently to
acquire marketable title or deed and to gain access to the UST, UST system, UST
facility, and property on which the UST or UST system is located. The indicia of
ownership held after foreclosure continue to be maintained primarily as
protection for a security interest provided that the holder undertakes to sell,
re-lease an UST or UST system or facility or property on which the UST or UST
system is located, held pursuant to a lease financing transaction (whether by a
new lease financing transaction or substitution of the lessee), or otherwise
divest itself of the UST or UST system or facility or property on which the UST
or UST system is located, in a reasonably expeditious manner, using whatever
commercially reasonable means are relevant or appropriate with respect to the
UST or UST system or facility or property on which the UST or UST system is
located, taking all facts and circumstances into consideration, and provided
that the holder does not participate in management (as defined in §280.210(a))
prior to or after foreclosure.
(ii) For purposes of establishing that a holder is seeking to sell, re-lease
pursuant to a lease financing transaction (whether by a new lease financing
transaction or substitution of the lessee), or divest in a reasonably
expeditious manner an UST or UST system or facility or property on which the UST
or UST system is located, the holder may use whatever commercially reasonable
means as are relevant or appropriate with respect to the UST or UST system or
facility or property on which the UST or UST system is located, or may employ
the means specified in §280.210(c)(2). A holder that outbids, rejects, or fails
to act upon a written bona fide, firm offer of fair consideration for the
UST or UST system or facility or property on which the UST or UST system is
located, as provided in §280.210(c)(2), is not considered to hold indicia of
ownership primarily to protect a security interest.
(2) Holding foreclosed property for disposition and liquidation. A holder,
who does not participate in management prior to or after foreclosure, may sell,
re-lease, pursuant to a lease financing transaction (whether by a new lease
financing transaction or substitution of the lessee), an UST or UST system or
facility or property on which the UST or UST system is located, liquidate, wind
up operations, and take measures, prior to sale or other disposition, to
preserve, protect, or prepare the secured UST or UST system or facility or
property on which the UST or UST system is located. A holder may also arrange
for an existing or new operator to continue or initiate operation of the UST or
UST system. The holder may conduct these activities without voiding the security
interest exemption, subject to the requirements of this subpart.
(i) A holder establishes that the ownership indicia maintained after
foreclosure continue to be held primarily to protect a security interest by,
within 12 months following foreclosure, listing the UST or UST system or the
facility or property on which the UST or UST system is located, with a broker,
dealer, or agent who deals with the type of property in question, or by
advertising the UST or UST system or facility or property on which the UST or
UST system is located, as being for sale or disposition on at least a monthly
basis in either a real estate publication or a trade or other publication
suitable for the UST or UST system or facility or property on which the UST or
UST system is located, or a newspaper of general circulation (defined as one
with a circulation over 10,000, or one suitable under any applicable federal,
state, or local rules of court for publication required by court order or rules
of civil procedure) covering the location of the UST or UST system or facility
or property on which the UST or UST system is located. For purposes of this
provision, the 12-month period begins to run from December 6, 1995 or from the
date that the marketable title or deed has been issued, approved and recorded,
and the holder has obtained access to the UST, UST system, UST facility and
property on which the UST or UST system is located, whichever is later, provided
that the holder acted diligently to acquire marketable title or deed and to
obtain access to the UST, UST system, UST facility and property on which the UST
or UST system is located. If the holder fails to act diligently to acquire
marketable title or deed or to gain access to the UST or UST system, the
12-month period begins to run from December 6, 1995 or from the date on which
the holder first acquires either title to or possession of the secured UST or
UST system, or facility or property on which the UST or UST system is located,
whichever is later.
(ii) A holder that outbids, rejects, or fails to act upon an offer of fair
consideration for the UST or UST system or the facility or property on which the
UST or UST system is located, establishes by such outbidding, rejection, or
failure to act, that the ownership indicia in the secured UST or UST system or
facility or property on which the UST or UST system is located are not held
primarily to protect the security interest, unless the holder is required, in
order to avoid liability under federal or state law, to make a higher bid, to
obtain a higher offer, or to seek or obtain an offer in a different manner.
(A) Fair consideration, in the case of a holder maintaining indicia of
ownership primarily to protect a senior security interest in the UST or UST
system or facility or property on which the UST or UST system is located, is the
value of the security interest as defined in this section. The value of the
security interest includes all debt and costs incurred by the security interest
holder, and is calculated as an amount equal to or in excess of the sum of the
outstanding principal (or comparable amount in the case of a lease that
constitutes a security interest) owed to the holder immediately preceding the
acquisition of full title (or possession in the case of a lease financing
transaction) pursuant to foreclosure, plus any unpaid interest, rent, or
penalties (whether arising before or after foreclosure). The value of the
security interest also includes all reasonable and necessary costs, fees, or
other charges incurred by the holder incident to work out, foreclosure,
retention, preserving, protecting, and preparing, prior to sale, the UST or UST
system or facility or property on which the UST or UST system is located,
re-lease, pursuant to a lease financing transaction (whether by a new lease
financing transaction or substitution of the lessee), of an UST or UST system or
facility or property on which the UST or UST system is located, or other
disposition. The value of the security interest also includes environmental
investigation costs (which could include a site assessment, inspection, and/or
audit of the UST or UST system or facility or property on which the UST or UST
system is located), and corrective action costs incurred under §§280.51 through
280.67 or any other costs incurred as a result of reasonable efforts to comply
with any other applicable federal, state or local law or regulation; less any
amounts received by the holder in connection with any partial disposition of the
property and any amounts paid by the borrower (if not already applied to the
borrower's obligations) subsequent to the acquisition of full title (or
possession in the case of a lease financing transaction) pursuant to
foreclosure. In the case of a holder maintaining indicia of ownership primarily
to protect a junior security interest, fair consideration is the value of all
outstanding higher priority security interests plus the value of the security
interest held by the junior holder, each calculated as set forth in this
paragraph.
(B) Outbids, rejects, or fails to act upon an offer of fair consideration
means that the holder outbids, rejects, or fails to act upon within 90 days of
receipt, a written, bona fide, firm offer of fair consideration for the
UST or UST system or facility or property on which the UST or UST system is
located received at any time after six months following foreclosure, as defined
in §280.210(c). A "written, bona fide, firm offer" means a legally
enforceable, commercially reasonable, cash offer solely for the foreclosed UST
or UST system or facility or property on which the UST or UST system is located,
including all material terms of the transaction, from a ready, willing, and able
purchaser who demonstrates to the holder's satisfaction the ability to perform.
For purposes of this provision, the six-month period begins to run from December
6, 1995 or from the date that marketable title or deed has been issued, approved
and recorded to the holder, and the holder has obtained access to the UST, UST
system, UST facility and property on which the UST or UST system is located,
whichever is later, provided that the holder was acting diligently to acquire
marketable title or deed and to obtain access to the UST or UST system, UST
facility and property on which the UST or UST system is located. If the holder
fails to act diligently to acquire marketable title or deed or to gain access to
the UST or UST system, the six-month period begins to run from December 6, 1995
or from the date on which the holder first acquires either title to or
possession of the secured UST or UST system, or facility or property on which
the UST or UST system is located, whichever is later.
(3) Actions that are not participation in management post-foreclosure. A
holder is not considered to be participating in the management of an UST or UST
system or facility or property on which the UST or UST system is located when
undertaking actions under 40 CFR part 280, provided that the holder does not
otherwise participate in the management or daily operation of the UST or UST
system as provided in §280.210(a) and §280.230. Such allowable actions include,
but are not limited to, release detection and release reporting, release
response and corrective action, temporary or permanent closure of an UST or UST
system, UST upgrading or replacement, and maintenance of corrosion protection. A
holder who undertakes these actions must do so in compliance with the applicable
requirements in 40 CFR part 280 or applicable state requirements in those states
that have been delegated authority by EPA to administer the UST program pursuant
to 42 U.S.C. 6991c and 40 CFR part 281. A holder may directly oversee these
environmental compliance actions and voluntary environmental actions, and
directly hire contractors to perform the work, and is not by such action
considered to be participating in the management of the UST or UST system.
[TOP] §280.220
Ownership of an underground storage tank or underground
storage tank system or facility or property on which an underground storage tank
or underground storage tank system is located.
Ownership of an UST or UST system or facility or property on which an UST or
UST system is located. A holder is not an "owner" of a petroleum UST or UST
system or facility or property on which a petroleum UST or UST system is located
for purposes of compliance with the UST technical standards as defined in
§280.200(a), the UST corrective action requirements under §§280.51 through
280.67, and the UST financial responsibility requirements under §§280.90 through
280.111, provided the person:
(a) Does not participate in the management of the UST or UST system as
defined in §280.210; and
(b) Does not engage in petroleum production, refining, and marketing as
defined in §280.200(b).
[TOP] §280.230
Operating an underground storage tank or underground storage
tank system.
(a) Operating an UST or UST system prior to foreclosure. A holder, prior to
foreclosure, as defined in §280.210(c), is not an "operator" of a petroleum UST
or UST system for purposes of compliance with the UST technical standards as
defined in §280.200(a), the UST corrective action requirements under §§280.51
through 280.67, and the UST financial responsibility requirements under §§280.90
through 280.111, provided that, after December 6, 1995, the holder is not in
control of or does not have responsibility for the daily operation of the UST or
UST system.
(b) Operating an UST or UST system after foreclosure. The following
provisions apply to a holder who, through foreclosure, as defined in
§280.210(c), acquires a petroleum UST or UST system or facility or property on
which a petroleum UST or UST system is located.
(1) A holder is not an "operator" of a petroleum UST or UST system for
purposes of compliance with 40 CFR part 280 if there is an operator, other than
the holder, who is in control of or has responsibility for the daily operation
of the UST or UST system, and who can be held responsible for compliance with
applicable requirements of 40 CFR part 280 or applicable state requirements in
those states that have been delegated authority by EPA to administer the UST
program pursuant to 42 U.S.C. 6991c and 40 CFR part 281.
(2) If another operator does not exist, as provided for under paragraph
(b)(1) of this section, a holder is not an "operator" of the UST or UST system,
for purposes of compliance with the UST technical standards as defined in
§280.200(a), the UST corrective action requirements under §§280.51 through
280.67, and the UST financial responsibility requirements under §§280.90 through
280.111, provided that the holder:
(i) Empties all of its known USTs and UST systems within 60 calendar days
after foreclosure or within 60 calendar days after December 6, 1995, whichever
is later, or another reasonable time period specified by the implementing
agency, so that no more than 2.5 centimeters (one inch) of residue, or 0.3
percent by weight of the total capacity of the UST system, remains in the
system; leaves vent lines open and functioning; and caps and secures all other
lines, pumps, manways, and ancillary equipment; and
(ii) Empties those USTs and UST systems that are discovered after foreclosure
within 60 calendar days after discovery or within 60 calendar days after
December 6, 1995, whichever is later, or another reasonable time period
specified by the implementing agency, so that no more than 2.5 centimeters (one
inch) of residue, or 0.3 percent by weight of the total capacity of the UST
system, remains in the system; leaves vent lines open and functioning; and caps
and secures all other lines, pumps, manways, and ancillary equipment.
(3) If another operator does not exist, as provided for under paragraph
(b)(1) of this section, in addition to satisfying the conditions under paragraph
(b)(2) of this section, the holder must either:
(i) Permanently close the UST or UST system in accordance with §§280.71
through 280.74, except §280.72(b); or
(ii) Temporarily close the UST or UST system in accordance with the following
applicable provisions of §280.70:
(A) Continue operation and maintenance of corrosion protection in accordance
with §280.31;
(B) Report suspected releases to the implementing agency; and
(C) Conduct a site assessment in accordance with §280.72(a) if the UST system
is temporarily closed for more than 12 months and the UST system does not meet
either the performance standards in §280.20 for new UST systems or the upgrading
requirements in §280.21, except that the spill and overfill equipment
requirements do not have to be met. The holder must report any suspected
releases to the implementing agency. For purposes of this provision, the
12-month period begins to run from December 6, 1995 or from the date on which
the UST system is emptied and secured under paragraph (b)(2) of this section,
whichever is later.
(4) The UST system can remain in temporary closure until a subsequent
purchaser has acquired marketable title to the UST or UST system or facility or
property on which the UST or UST system is located. Once a subsequent purchaser
acquires marketable title to the UST or UST system or facility or property on
which the UST or UST system is located, the purchaser must decide whether to
operate or close the UST or UST system in accordance with applicable
requirements in 40 CFR part 280 or applicable state requirements in those states
that have been delegated authority by EPA to administer the UST program pursuant
to 42 U.S.C. 6991c and 40 CFR part 281.
Appendix I to Part 280 -- Notification for Underground Storage Tanks
(Form)
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Appendix II to Part 280 -- List of Agencies Designated To Receive
Notifications
Alabama (EPA Form), Alabama Department of Environmental Management, Ground
Water Section/Water Division, 1751 Congressman W.L. Dickinson Drive, Montgomery,
Alabama 36130, 205/271-7823
Alaska (EPA Form), Department of Environmental Conservation, Box 0, Juneau,
Alaska 99811-1800, 970/465-2653
American Samoa (EPA Form), Executive Secretary, Environmental Quality
Commission, Office of the Governor, American Samoan Government, Pago Pago,
American Samoa 96799; Attention: UST Notification
Arizona (EPA Form), Attention: UST Coordinator, Arizona Department of
Environmental Quality, Environmental Health Services, 2005 N. Central, Phoenix,
Arizona 85004
Arkansas (EPA Form), Arkansas Department of Pollution Control and Ecology,
P.O. Box 9583, Little Rock, Arkansas 72219, 501/562-7444
California (State Form), Executive Director, State Water Resources Control
Board, P.O. Box 100, Sacramento, California 95801, 916/445-1533
Co1orado (EPA Form), Section Chief, Colorado Department of Health, Waste
Management Division, Underground Tank Program, 4210 East 11th Avenue, Denver,
Colorado 80220, 303/320-8333
Connecticut (State Form), Hazardous Materials Management Unit, Department of
Environmental Protection, State Office Building, 165 Capitol Avenue, Hartford,
Connecticut 06106
Delaware (State Form), Division of Air and Waste Management, Department of
Natural Resources and Environmental Control, P.O. Box 1401, 89 Kings Highway,
Dover, Delaware 19903, 302/726-5409
District of Columbia (EPA Form), Attention: UST Notification Form, Department
of Consumer and Regulatory Affairs, Pesticides and Hazardous Waste Management
Branch, Room 114, 5010 Overlook Avenue SW., Washington, DC 20032
Florida (State Form), Florida Department of Environmental Regulation, Solid
Waste Section, Twin Towers Office Building, 2600 Blair Stone Road, Tallahassee,
Florida 32399, 904/487-4398
Georgia (EPA Form), Georgia Department of Natural Resources, Environmental
Protection Division, Underground Storage Tank Program, 3420 Norman Berry Drive,
7th Floor, Hapeville, Georgia 30354, 404/656-7404
Guam (State Form), Administrator, Guam Environmental Protection Agency, P.O.
Box 2999, Agana, Guam 96910, Overseas Operator (Commercial call 646-8863)
Hawaii (EPA Form), Administrator, Hazardous Waste Program, 645 Halekauwila
Street, Honolulu, Hawaii 96813, 808/548-2270
Idaho (EPA Form), Underground Storage Tank Coordinator, Water Quality Bureau,
Division of Environmental Quality, Idaho Department of Health and Welfare, 450
W. State Street, Boise, Idaho 83720, 208/334-4251
Illinois (EPA Form), Underground Storage Tank Coordinator, Division of Fire
Prevention, Office of State Fire Marshal, 3150 Executive Park Drive,
Springfield, Illinois 62703-4599
Indiana (EPA Form), Underground Storage Tank Program, Office of Environmental
Response, Indiana Department of Environmental Management, 105 South Meridian
Street, Indianapolis, Indiana 46225
Iowa (State Form), UST Coordinator, Iowa Department of Natural Resources,
Henry A. Wallace Building, 900 East Grand, Des Moines, Iowa 50219, 512/281-8135
Kansas (EPA Form), Kansas Department of Health and Environment, Forbes Field,
Building 740, Topeka, Kansas 66620, 913/296-1594
Kentucky (State Form), Department of Environmental Protection, Hazardous
Waste Branch, Fort Boone Plaza, Building #2, 18 Reilly Road, Frankfort, Kentucky
40601, 501/564-6716
Louisiana (State Form), Secretary, Louisiana Department of Environmental
Quality, P.O. Box 44066, Baton Rouge, Louisiana 70804, 501/342-1265
Maine (State Form), Attention: Underground Tanks Program, Bureau of Oil and
Hazardous Material Control, Department of Environmental Protection, State House
-- Station 17, Augusta, Maine 04333
Maryland (EPA Form), Science and Health Advisory Group, Office of
Environmental Programs, 201 West Preston Street, Baltimore, Maryland 21201
Massachusetts (EPA Form), UST Registry, Department of Public Safety, 1010
Commonwealth Avenue, Boston, Massachusetts 02215, 617/566-4500
Michigan (EPA Form), Michigan Department of State Police, Fire Marshal
Division, General Office Building, 7150 Harris Drive, Lansing, Michigan 48913
Minnesota (State Form), Underground Storage Tank Program, Division of Solid
and Hazardous Wastes, Minnesota Pollution Control Agency, 520 West Lafayette
Road, St. Paul, Minnesota 55155
Mississippi (State Form), Department of Natural Resources, Bureau of
Pollution Control, Underground Storage Tank Section, P.O. Box 10385, Jackson,
Mississippi 39209, 601/961-5171
Missouri (EPA Form), UST Coordinator, Missouri Department of Natural
Resources, P.O. Box 176, Jefferson City, Missouri 65102, 314/751-7428
Montana (EPA Form), Solid and Hazardous Waste Bureau, Department of Health
and Environmental Science, Cogswell Bldg., Room B-201, Helena, Montana 59620
Nebraska (EPA Form), Nebraska State Fire Marshal, P.O. Box 94677, Lincoln,
Nebraska 68509-4677, 402/471-9465
Nevada (EPA Form), Attention: UST Coordinator, Division of Environmental
Protection, Department of Conservation and Natural Resources, Capitol Complex
201 S. Fall Street, Carson City, Nevada 89710, 800/992-0900, Ext. 4670,
702/885-4670
New Hampshire (EPA Form), NH Dept. of Environmental Services, Water Supply
and Pollution Control Division, Hazen Drive, P.O. Box 95, Concord, New Hampshire
03301, Attention: UST Registration
New Jersey (State Form), Underground Storage Tank Coordinator, Department of
Environmental Protection, Division of Water Resources (CN-029), Trenton, New
Jersey 08625, 609/292-0424
New Mexico (EPA Form), New Mexico Environmental Improvement Division,
Groundwater/Hazardous Waste Bureau, P.O. Box 968, Santa Fe, New Mexico 37504,
505/827-2933
New York (EPA Form), Bulk Storage Section, Division of Water, Department of
Environmental Conservation, 50 Wolf Road, Room 326, Albany, New York 12233-0001,
518/457-4351
North Carolina (EPA Form), Division of Environmental Management, Ground-Water
Operations Branch, Department of Natural Resources and Community Development,
P.O. Box 27687, Raleigh, North Carolina 27611, 919/733-3221
North Dakota (State Form), Division of Hazardous Management and Special
Studies, North Dakota Department of Health, Box 5520, Bismarck, North Dakota
58502-5520
Northern Mariana Islands (EPA Form), Chief, Division of Environmental
Quality, P.O. Box 1304, Commonwealth of Northern Mariana Islands, Saipan, CM
96950, Cable Address: Gov. NMI Saipan, Overseas Operator: 6984
Ohio (State Form), State Fire Marshal's Office, Department of Commerce, 8895
E. Main Street, Reynoldsburg, Ohio 43068, State Hotline: 800/282-1927
Oklahoma (EPA Form), Underground Storage Tank Program, Oklahoma Corporation
Comm., Jim Thorpe Building, Oklahoma City, Oklahoma 73105
Oregon (State Form), Underground Storage Tank Program, Hazardous and Solid
Waste Division, Department of Environmental Quality, 811 S.W. Sixth Avenue,
Portland, Oregon 98204, 503/229-5788
Pennsylvania (EPA Form), PA Department of Environmental Resources, Bureau of
Water Quality Management, Ground Water Unit, 9th Floor Fulton Building, P.O. Box
2063, Harrisburg, Pennsylvania 17120
Puerto Rico (EPA Form), Director, Water Quality Control Area, Environmental
Quality Board, Commonwealth of Puerto Rico, Santurce, Puerto Rico, 809/725-0717
Rhode Island (EPA Form), UST Registration, Department of Environmental
Management, 83 Park Street, Providence, Rhode Island 02903, 401/277-2234
South Carolina (State Form), Ground-Water Protection Division, South Carolina
Department of Health and Environmental Control, 2600 Bull Street, Columbia,
South Carolina 29201, 803/758-5213
South Dakota (EPA Form), Office of Water Quality, Department of Water and
Natural Resources, Joe Foss Building, Pierre, South Dakota 57501,
Tennessee (EPA Form), Tennessee Department of Health and Environment,
Division of Superfund Underground Storage Tank Section, 150 Ninth Avenue, North,
Nashville, Tennessee 37219-5404, 615/741-0690
Texas (EPA Form), Underground Storage Tank Program, Texas Water Commission,
P.O. Box 13087, Austin, Texas 78711
Utah (EPA Form), Division of Envirormental Health, P.O. Box 45500, Salt Lake
City, Utah 84145-0500
Vermont (State Form), Underground Storage Tank Program, Vermont AEC/Waste
Management Division, State Office Building, Montpelier, Vermont 05602,
802/828-3395
Virginia (EPA Form), Virginia Water Control Board, P.O. Box 11143, Richmond,
Virginia 23230-1143, 804/257-6685
Virgin Islands (EPA Form), 205(J) Coordinator, Division of Natural Resources
Management, 14 F Building 111, Watergut Homes, Christianstead, St. Croix, Virgin
Islands 00820
Washington (State Form), Underground Storage Tank Notification, Solid and
Hazardous Waste Program, Department of Ecology, M/S PV-11, Olympia, Washington
98504-8711, 206/459-6316
West Virginia (EPA Form), Attention: UST Notification, Solid and Hazardous
Waste, Ground Water Branch, West Virginia Department of Natural Resources, 1201
Greenbriar Street, Charleston, West Virginia 25311
Wisconsin (State Form), Bureau of Petroleum Inspection, P.O. Box 7969,
Madison, Wisconsin 53707, 608/266-7605
Wyoming (EPA Form), Water Quality Division, Department of Environmental
Quality, Herschler Building, 4th Floor West, 122 West 25th Street, Cheyenne,
Wyoming 82002, 307/777-7781.
Appendix III to Part 280 -- Statement for Shipping Tickets and
Invoices
Note. -- A Federal law (the Resource Conservation and Recovery Act
(RCRA), as amended (Pub. L. 98-616)) requires owners of certain underground
storage tanks to notify designated State or local agencies by May 8, 1986, of
the existence of their tanks. Notifications for tanks brought into use after May
8, 1986, must be made within 30 days. Consult EPA's regulations, issued on
November 8, 1985 (40 CFR part 280) to determine if you are affected by this
law