HAR §11-264.1-10. (Bankruptcy), U

S. Code, naming guarantor as debtor, within 10 days after commencement of the proceeding. 7. Guarantor agrees that within 30 days after being notified by the director of health, State of Hawaii, of a determination that guarantor no longer meets the financial test criteria or that he is disallowed from continuing as a guarantor, he shall establish alternate liability coverage as specified in the incorporated version of 40 C.F.R. section 264.147, as amended, in section 11-264.1-1, Hawaii Administrative Rules, or the incorporated version of 40 C.F.R. section 265.147, as amended, in section 11-265.1-1, Hawaii Administrative Rules, in the name of [owner or operator], unless [owner or operator] has done so. 8. Guarantor reserves the right to modify this agreement to take into account amendment or modification of the liability requirements set by the incorporated version of 40 C.F.R. section 264.147, as amended, in section 11-264.1-1, Hawaii Administrative Rules, and the incorporated version of 40 C.F.R. section 265.147, as amended, in section 11-265.1-1, Hawaii Administrative Rules, provided that such modification shall become effective only if the director of health, State of Hawaii, does not disapprove the modification within 30 days of receipt of notification of the modification. 9. Guarantor agrees to remain bound under this guarantee for so long as [owner or operator] must comply with the applicable requirements of the incorporated version of 40 C.F.R. section 264.147, as amended, in section 11-264.1-1, Hawaii Administrative Rules, and the incorporated version of 40 C.F.R. section 265.147, as amended, in section 11-265.1-1, Hawaii Administrative Rules, for the above-listed facility(ies), except as provided in paragraph 10 of this agreement. 10. [Insert the following language if the guarantor is (a) a direct or higher-tier corporate parent, or (b) a firm whose parent corporation is also the parent corporation of the owner or operator]: 264.1-47 §11-264.1-10 Guarantor may terminate this guarantee by sending notice by certified mail to the director of health, State of Hawaii, the EPA Regional Administrator, the state agency and EPA Regional Administrator regulating hazardous waste in all states where facilities covered by the guarantee are located, and to [owner or operator], provided that this guarantee may not be terminated unless and until [the owner or operator] obtains, and the director of Health, State of Hawaii, approves, alternate liability coverage complying with the incorporated version of 40 C.F.R. section 264.147, as amended, in section 11-264.1-1, Hawaii Administrative Rules, and/or the incorporated version of 40 C.F.R. section 265.147, as amended, in section 11-265.1-1, Hawaii Administrative Rules. [Insert the following language if the guarantor is a firm qualifying as a guarantor due to its nsubstantial business relationship" with the owner or operator]: Guarantor may terminate this guarantee 120 days following receipt of notification, through certified mail, by the director of health, State of Hawaii, the EPA Regional Administrator, the state agency and EPA Regional Administrator regulating hazardous waste in all states where facilities covered by the guarantee are located, and by [the owner or operator]. 11. Guarantor hereby expressly waives notice of acceptance of this guarantee by any party. 12. Guarantor agrees that this guarantee is in addition to and does not affect any other responsibility or liability of the guarantor with respect to the covered facilities. 13. The Guarantor shall satisfy a third-party liability claim only on receipt of one of the following documents: (a) Certification from the Principal and the third-party claimant(s) that the liability claim should be paid. The certification must be worded as follows, except that instructions in brackets are to be replaced with the relevant information and the brackets deleted: Certification of Valid Claim 264.1-48 §11-264.1-10 The undersigned, as parties [insert Principal] and [insert name and address of third- party claimant(s) ], hereby certify that the claim of bodily injury and/or property damage caused by a [sudden or nonsudden] accidental occurrence arising from operating [Principal's] hazardous waste treatment, storage, or disposal facility should be paid in the amount of$ [Signatures] Principal (Notary) Date [Signatures] Claimant(s) (Notary) Date (b) A valid final court order establishing a judgment against the Principal for bodily injury or property damage caused by sudden or nonsudden accidental occurrences arising from the operation of the Principal's facility or group of facilities. 14. In the event of combination of this guarantee with another mechanism to meet liability requirements, this guarantee will be considered [insert "primary" or "excess"] coverage. I hereby certify that the wording of the guarantee is identical to the wording specified in the incorporated version of 40 C.F.R. section 264.151(h) (2), as amended, in section 11-265.1-1, Hawaii Administrative Rules, as such regulations were constituted on the date shown immediately below. Effective date: [Name of guarantor] [Authorized signature for guarantor] [Name of person signing] [Title of person signing] Signature of witness or notary: (i) A hazardous waste facility liability endorsement as required in 40 C.F.R. section 264.147, as incorporated and amended in this chapter, or 40 C.F.R. section 265.147, as incorporated and amended in section 11-265.1-1, must be worded as follows, except 264.1-49 §11-264.1-10 that instructions in brackets are to be replaced with the relevant information and the brackets deleted: HAZARDOUS WASTE FACILITY LIABILITY ENDORSEMENT 1. This endorsement certifies that the policy to which the endorsement is attached provides liability insurance covering bodily injury and property damage in connection with the insured's obligation to demonstrate financial responsibility under the incorporated version of 40 C.F.R. section 264.147, as amended, in section 11-264.1-1, Hawaii Administrative Rules, or the incorporated version of 40 C.F.R. section 265.147, as amended, in section 11-265.1-1, Hawaii Administrative Rules. The coverage applies at [list EPA Identification Number, name, and address for each facility] for [insert "sudden accidental occurrences," "nonsudden accidental occurrences," or "sudden and nonsudden accidental occurrences"; if coverage is for multiple facilities and the coverage is different for different facilities, indicate which facilities are insured for sudden accidental occurrences, which are insured for nonsudden accidental occurrences, and which are insured for both]. The limits of liability are [insert the dollar amount of the "each occurrence" and "annual aggregate" limits of the Insurer's liability], exclusive of legal defense costs. 2. The insurance afforded with respect to such occurrences is subject to all of the terms and conditions of the policy; provided, however, that any provisions of the policy inconsistent with subsections (a) through (e) of this Paragraph 2 are hereby amended to conform with subsections (a) through (e): (a) Bankruptcy or insolvency of the insured shall not relieve the Insurer of its obligations under the policy to which this endorsement is attached. (b) The Insurer is liable for the payment of amounts within any deductible applicable to the policy, with a right of reimbursement by the insured for any such payment made by the Insurer. 264.1-50 §11-264.1-10 This provision does not apply with respect to that amount of any deductible for which coverage is demonstrated as specified in the incorporated version of 40 C.F.R. section 264.147(f), as amended, in section 11-264.1-1, Hawaii Administrative Rules, or the incorporated version of 40 C.F.R. section 265.147(f), as amended, in section 11-265.1-1, Hawaii Administrative Rules. (c) Whenever requested by the director of health, State of Hawaii, the Insurer agrees to furnish to the director a signed duplicate original of the policy and all endorsements. (d) Cancellation of this endorsement, whether by the Insurer, the insured, a parent corporation providing insurance coverage for its subsidiary, or by a firm having an insurable interest in and obtaining liability insurance on behalf of the owner or operator of the hazardous waste management facility, will be effective only upon written notice and only after the expiration of 60 days after a copy of such written notice is received by the director of health, State of Hawaii, the EPA Regional Administrator, and the state agency and EPA Regional Administrator regulating hazardous waste in all states where facilities covered by the policy are located. (e) Any other termination of this endorsement will be effective only upon written notice and only after the expiration of thirty (30) days after a copy of such written notice is received by the director of health, State of Hawaii, the EPA Regional Administrator, and the state agency and EPA Regional Administrator regulating hazardous waste in all states where facilities covered by the policy are located. Attached to and forming part of policy No. issued by [name of Insurer], herein called the Insurer, of [address of Insurer] to [name of insured] of [address] this ____ day of ____ , 20 The effective date of said policy is ____ day of , 20 ---- 264.1-51 §11-264.1-10 I hereby certify that the wording of this endorsement is identical to the wording specified in the incorporated version of 40 C.F.R. section 264.151(i), as amended, in section 11-264.1-1, Hawaii Administrative Rules, as such regulation was constituted on the date first above written, and that the Insurer is licensed to transact the business of insurance, or eligible to provide 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] [Address of Representative] (j) A certificate of liability insurance as required in 40 C.F.R. section 264.147, as incorporated and amended in this chapter, or 40 C.F.R. section 265.147, as incorporated and amended in section 11-265.1-1, must be worded as follows, except that the instructions in brackets are to be replaced with the relevant information and the brackets deleted: HAZARDOUS WASTE FACILITY CERTIFICATE OF LIABILITY INSURANCE 1. [Name of Insurer] , ( the "Insurer") , of [address of Insurer] hereby certifies that it has issued liability insurance covering bodily injury and property damage to [name of insured], (the "insured"), of [address of insured] in connection with the insured's obligation to demonstrate financial responsibility under the incorporated version of 40 C.F.R. section 264.147, as amended, in section 11-264.1-1, Hawaii Administrative Rules, or the incorporated version of 40 C.F.R. section 265.147, as amended, in section 11-265.1-1, Hawaii Administrative Rules. The coverage applies at [list EPA Identification Number, name, and address for each facility] for [insert "sudden accidental occurrences," "nonsudden accidental occurrences," or "sudden and 264.1-52 §11-264.1-10 nonsudden accidental occurrences"; if coverage is for multiple facilities and the coverage is different for different facilities, indicate which facilities are insured for sudden accidental occurrences, which are insured for nonsudden accidental occurrences, and which are insured for both]. The limits of liability are [insert the dollar amount of the "each occurrence" and "annual aggregate" limits of the Insurer's liability}, exclusive of legal defense costs. The coverage is provided under policy number , issued on [date]. The effective date of said policy is [date]. 2. The Insurer further certifies the following with respect to the insurance described in Paragraph 1: (a) Bankruptcy or insolvency of the insured shall not relieve the Insurer of its obligations under the policy. (b) The Insurer is liable for the payment of amounts within any deductible applicable to the policy, with a right of reimbursement by the insured for any such payment made by the Insurer. This provision does not apply with respect to that amount of any deductible for which coverage is demonstrated as specified in the incorporated version of 40 C.F.R. section 264.147(f), as amended, in section 11-264.1-1, Hawaii Administrative Rules, or the incorporated version of 40 C.F.R. section 265.147(f), as amended, in section 11-265.1-1, Hawaii Administrative Rules. (c) Whenever requested by the director of health, State of Hawaii, the Insurer agrees to furnish to the director a signed duplicate original of the policy and all endorsements. (d) Cancellation of the insurance, whether by the insurer, the insured, a parent corporation providing insurance coverage for its subsidiary, or by a firm having an insurable interest in and obtaining liability insurance on behalf of the owner or operator of the hazardous waste management facility, will be effective only upon written notice and only after the expiration of 264.1-53 §11-264.1-10 60 days after a copy of such written notice is received by the director of health, State of Hawaii, the EPA Regional Administrator, and the state agency and EPA Regional Administrator regulating hazardous waste in all states where facilities covered by the policy are located. (e) Any other termination of the insurance will be effective only upon written notice and only after the expiration of thirty (30) days after a copy of such written notice is received by the director of health, State of Hawaii, the EPA Regional Administrator, and the state agency and EPA Regional Administrator regulating hazardous waste in all states where facilities covered by the policy are located. I hereby certify that the wording of this instrument is identical to the wording specified in the incorporated version of 40 C.F.R. section 264.151(j), as amended, in section 11-264.1-1, Hawaii Administrative Rules, as such regulation was constituted on the date first above written, and that the Insurer is licensed to transact the business of insurance, or eligible to provide 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] [Address of Representative] (k) A letter of credit, as specified in 40 C.F.R. section 264.147(h), as incorporated and amended in this chapter, or 40 C.F.R. section 265.147(h), as incorporated and amended in section 11-265.1-1, 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 264.1-54 §11 264.1-10 Name and Address of Issuing Institution Director of Health State of Hawaii Dear Sir or Madam: We hereby establish our Irrevocable Standby Letter of Credit No. ____ in the favor of ["any and all third-party liability claimants" or insert name of trustee of the standby trust fund], at the request and for the account of [owner or operator's name and address] for third-party liability awards or settlements up to [in words] U.S. dollars$ ____ per occurrence and the annual aggregate amount of [in words] U.S. dollars$ ---- for sudden accidental occurrences and/or for third- party liability awards or settlements up to the amount of [in words] U.S. dollars$ ___ per occurrence, and the annual aggregate amount of [in words] U.S. dollars $ ____ , for nonsudden accidental occurrences available upon presentation of a sight draft bearing reference to this letter of credit No. ____ , and [insert the following language if the letter of credit is being used without a standby trust fund: (1) a signed certificate reading as follows: Certificate of Valid Claim The undersigned, as parties [insert principal] and [insert name and address of third party claimant(s)], hereby certify that the claim of bodily injury and/or property damage caused by a [sudden or nonsudden] accidental occurrence arising from operations of [principal's] hazardous waste treatment, storage, or disposal facility should be paid in the amount of$[ ] . We hereby certify that the claim does not apply to any of the following: (a) Bodily injury or property damage for which [insert principal] is obligated to pay damages by reason of the assumption of liability in a contract or agreement. This exclusion does not apply to liability for damages that [insert principal] would be obligated to pay in the absence of the contract or agreement. (b) Any obligation of [insert principal] under a workers' compensation, disability 264.1-55 §11-264.1-10 benefits, or unemployment compensation law or any similar law. (c) Bodily injury to: (1) An employee of [insert principal] arising from, and in the course of, employment by [insert principal]; or (2) The spouse, child, parent, brother or sister of that employee as a consequence of, or arising from, and in the course of employment by [insert principal]. This exclusion applies: (A) Whether [insert principal] may be liable as an employer or in any other capacity; and (B) To any obligation to share damages with or repay another person who must pay damages because of the injury to persons identified in paragraphs (1) and (2). (d) Bodily injury or property damage arising out of the ownership, maintenance, use, or entrustment to others of any aircraft, motor vehicle or watercraft. (e) Property damage to: (1) Any property owned, rented, or occupied by [insert principal]; (2) Premises that are sold, given away or abandoned by [insert principal] if the property damage arises out of any part of those premises; (3) Property loaned to [insert principal]; (4) Personal property in the care, custody or control of [insert principal]; (5) That particular part of real property on which [insert principal] or any contractors or subcontractors working directly or indirectly on behalf of [insert principal] are performing operations, if the property damage arises out of these operations. [Signatures] Grantor [Signatures] Claimant(s) or (2) a valid final court order establishing a judgment against the Grantor for bodily injury or property damage caused by sudden or nonsudden 264.1-56 §11-264.1-10 accidental occurrences arising from the operation of the Grantor's facility or group of facilities.] This letter of credit is effective as of [date] and shall expire on [date at least one year later], but such expiration date shall be automatically extended for a period of [at least one year] on [date and on each successive expiration date, unless, at least 120 days before the current expiration date, we notify you, the director of health, State of Hawaii, the EPA Regional Administrator, and [owner's or operator's name] by certified mail that we have decided not to extend this letter of credit beyond the current expiration date. Whenever this letter of credit is drawn on under and in compliance with the terms of this credit, we shall duly honor such draft upon presentation to us. [Insert the following language if a standby trust fund is not being used: "In the event that this letter of credit is used in combination with another mechanism for liability coverage, this letter of credit shall be considered [insert "primary" or "excess" coverage]."] We certify that the wording of this letter of credit is identical to the wording specified in the incorporated version of 40 C.F.R. section 264.15l(k), as amended, in section 11-264.1 1, Hawaii Administrative Rules, 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"]. (1) A surety bond, as specified in 40 C.F.R. section 264.147(i), as incorporated and amended in this chapter, or 40 C.F.R. section 265.147(i), as incorporated and amended in section 11-265.1-1, must be worded as follows: except that instructions in brackets are to be replaced with the relevant information and the brackets deleted: 264.1-57 §11-264.1-10 PAYMENT BOND Surety Bond No. [ Insert number] Parties [Insert name and address of owner or operator], Principal, incorporated in [Insert State of incorporation] of [Insert city and State of principal place of business] and [Insert name and address of surety company(ies) ], Surety Company(ies), of [Insert surety(ies) place of business]. EPA Identification Number, name, and address for each facilit y guaranteed by this bond: Penal Sum Per Occurrence. Annual Aggregate Sudden accidental Nonsudden acci- occurrences dental occurrences [insert amount] [insert amount] [insert amount] [insert amount] Purpose: This is an agreement between the Surety(ies) and the Principal under which the Surety(ies), its (their) successors and assignees, agree to be responsible for the payment of claims against the Principal f or bodily injury and/or property damage to third parties caused by ["sudden" and/or "nonsudden"] accidental occurrences arising from operations of the facility or group of facilities in the sums prescribed herein; subject to the governing provisions and the following conditions. Governing Provisions: (1 ) Chapter 342J, Hawaii Revised Statutes. (2) Administrative Rules of the Hawaii State Department of Health, particularly the i ncorporated version of ["40 C.F.R. section 264.147, as amended, in section 11-264.1-1" or "40 C.F.R. section 265 .147, as amended, in section 11-265.1-1"], Hawaii Administrative Rules (if applicable). Conditions: (1) The Principal is subject to the applicable governing provisions that require the Principal to 264.1-58 ( §11-264.1-10 have and maintain liability coverage for bodily injury and property damage to third parties caused by ["sudden" and/or "nonsudden"] accidental occurrences arising from operations of the facility or group of facilities. Such obligation does not apply to any of the following: (a) Bodily injury or property damage for which [insert principal] is obligated to pay damages by reason of the assumption of liability in a contract or agreement. This exclusion does not apply to liability for damages that [insert principal] would be obligated to pay in the absence of the contract or agreement. (b) Any obligation of [insert principal] under a workers' compensation, disability benefits, or unemployment compensation law or similar law. (c) Bodily injury to: (1) An employee of [insert principal] arising from, and in the course of, employment by [insert principal]; or (2) The spouse, child, parent, brother or sister of that employee as a consequence of, or arising from, and in the course of employment by [insert principal]. This exclusion applies: (A) Whether [insert principal] may be liable as an employer or in any other capacity; and (B) To any obligation to share damages with or repay another person who must pay damages because of the injury to persons identified in paragraphs (1) and (2). (d) Bodily injury or property damage arising out of the ownership, maintenance, use, or entrustment to others of any aircraft, motor vehicle or watercraft. (e) Property damage to: (1) Any property owned, rented, or occupied by [insert principal]; (2) Premises that are sold, given away or abandoned by [insert principal] if the property damage arises out of any part of those premises; (3) Property loaned to [insert principal]; 264.1-59 §11-264.1-10 (4) Personal property in the care, custody or control of [insert principal]; (5) That particular part of real property on which [insert principal] or any contractors or subcontractors working directly or indirectly on behalf of [insert principal] are performing operations, if the property damage arises out of these operations. (2) This bond assures that the Principal will satisfy valid third party liability claims, as described in condition 1. (3) If the Principal fails to satisfy a valid third party liability claim, as described above, the Surety(ies) becomes liable on this bond obligation. (4) The Surety(ies) shall satisfy a third party liability claim only upon the receipt of one of the following documents: (a) Certification from the Principal and the third party claimant(s) that the liability claim should be paid. The certification must be worded as follows, except that instructions in brackets are to be replaced with the relevant information and the brackets deleted: Certification of Valid Claim The undersigned, as parties [insert name of Principal] and [insert name and address of third party claimant(s) ], hereby certify that the claim of bodily injury and/or property damage caused by a [sudden or nonsudden] accidental occurrence arising from operating [Principal's] hazardous waste treatment, storage, or disposal facility should be paid in the amount of$[ ] . [Signature] Principal [Notary] Date [Signature(s)] Claimant(s) [Notary] Date or (b) A valid final court order establishing a judgment against the Principal for bodily injury or property damage caused by sudden or nonsudden 264.1-60 §11-264.1-10 accidental occurrences arising from the operation of the Principal's facility or group of facilities. (5) In the event of combination of this bond with another mechanism for liability coverage, this bond will be considered [insert "primary" or "excess"] coverage. (6) The liability of the Surety(ies) shall not be discharged by any payment or succession of payments hereunder, unless and until such payment or payments shall amount in the aggregate to the penal sum of the bond. In no event shall the obligation of the Surety(ies) hereunder exceed the amount of said annual aggregate penal sum, provided that the Surety(ies) furnish(es) notice to the director of health, State of Hawaii, forthwith of all claims filed and payments made by the Surety(ies) under this bond. (7) The Surety(ies) may cancel the bond by sending notice of cancellation by certified mail to the Principal, the director of health, State of Hawaii, and the EPA Regional Administrator, 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, the director of health, State of Hawaii, and the EPA Regional Administrator, as evidenced by the return receipts. (8) The Principal may terminate this bond by sending written notice to the Surety(ies) and to the director of health, State of Hawaii, the EPA Regional Administrator, and the state agency and EPA Regional Administrator regulating hazardous waste in all states where facilities covered by the bond are located. (9) The Surety(ies) hereby waive(s) notification of amendments to applicable laws, statutes, rules and regulations and agree(s) that no such amendment shall in any way alleviate its (their) obligation on this bond. (10) This bond is effective from [insert date] (12:01 a.m., standard time, at the address of the Principal as stated herein) and shall continue in force until terminated as described above. 264.1-61 §11-264.1-10 In Witness Whereof, the Principal and Surety(ies) have executed this Bond and have affixed their seals on the date set forth above. The persons whose signatures appear below hereby certify that they are authorized to execute this surety bond on behalf of the Principal and Surety(ies) and that the wording of this surety bond is identical to the wording specified in the incorporated version of 40 C.F.R. section 264.151(1), as amended, in section 11-264.1-1, Hawaii Administrative Rules, as such regulations were constituted on the date this bond was executed. PRINCIPAL [Signature(s)] [Name(s)] [Title(s)] [Corporate Seal] CORPORATE SURETY(IES) [Name and address] State of incorporation: Liability Limit: $ [Signature(s)] [Name(s) and title(s)] [Corporate seal] [For every co-surety, provide signature(s), corporate seal, and other information in the same manner as for Surety above.] Bond premium: $ (m) (1) A trust agreement, as specified in 40 C.F.R. section 264.147(j), as incorporated and amended in this chapter, or 40 C.F.R. section 265.147(j), as incorporated and amended in section 11-265.1-1, 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," 264.1-62 §11-264.1-10 "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 Department of Health, State of Hawaii, has established certain regulations applicable to the Grantor, requiring that an owner or operator of a hazardous waste management facility or group of facilities must demonstrate financial responsibility for bodily injury and property damage to third parties caused by sudden accidental and/or nonsudden accidental occurrences arising from operations of the facility or group of facilities. Whereas, the Grantor has elected to establish a trust to assure all or part of such financial responsibility for the facilities identified herein. Whereas, the Grantor, acting through its duly authorized officers, has selected the Trustee to be the trustee under this agreement, and the Trustee is willing to act as trustee. Now, therefore, the Grantor and the Trustee agree as follows: Section 1. Definitions. As used in this Agreement: (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. (c) The term "department" means the Department of Health, State of Hawaii. (d) The term "director" means the director of health, State of Hawaii. Section 2. Identification of Facilities. This agreement pertains to the facilities identified on attached schedule A [on schedule A, for each facility list the EPA Identification Number, name, and address of the facility(ies) and the amount of liability coverage, or portions thereof, if more than one instrument affords combined coverage as demonstrated by this Agreement]. 264.1-63