Bonding Requirements

(1) As used in 310 CMR 30.411, the term "bond" means: (a) a surety bond or performance bond; or (b) a collateral indemnity agreement in a certain sum payable to the Department in cash or in negotiable bonds of the United States of America, the Commonwealth of Massachusetts or any city, town, or body politic of the Commonwealth; or (c) An irrevocable letter of credit of any bank organized or authorized to transact business in the Commonwealth or in the United States of America; (d) Any other collateral deemed satisfactory to the Department, provided that all such collateral shall be deposited in an escrow account in a bank authorized to transact business in the Commonwealth, or may be held by the Department, and shall in all cases be in favor of the Department. (2) No new or revised license to transport hazardous wastes shall be issued by the Department until the applicant for such license has filed a bond payable to the Department on a form provided by the Department, and such bond has been approved by the Department. (3) The amount of the bond shall be $10,000 at a minimum and be in an amount sufficient to assure that the licensee shall faithfully perform all of the requirements of M.G.L. c. 21C and 310 CMR 30.000, the terms and conditions of the license and any Department order issued to the licensee. (4) Liability under the bond may be terminated by a surety or bank by giving 90 days written notice thereof, by registered or certified mail, to the Department and to the licensee. One year and 90 days from the date of receipt of the notice by both the Department and the licensee, as shown by the later return receipt, the surety or bank shall be discharged from all liability occurring after the expiration of 90 days from the date of receipt of the notice by both the Department and the licensee, as shown by the later return receipt, except that liability shall automatically be extended while administrative and judicial proceedings are pending involving or alleging a violation of M.G.L. c. 21C, 310 CMR 30.000, the terms and conditions of the license, or a Department order to the licensee. After the surety or bank gives such notice, and before the surety or bank's discharge from liability takes effect, or within another period set by order of the Department, the licensee shall provide evidence of replacement bond coverage; otherwise, the licensee shall be deemed to be without bond coverage in violation of 310 CMR 30.411. (5) The Department may require additional bond amounts at any time if the licensee changes the kind of wastes transported, or the way it transports them, or the Department determines such additional bond amounts are necessary to protect public health, safety, or welfare, or the environment or to ensure compliance with M.G.L. c. 21C, the terms and conditions of the license, or any Department order. (6) Collateral bonds, i.e. bonds described in 310 CMR 30.411(1), shall be subject to the following conditions: (a) The Department may obtain possession of and keep in custody all collateral deposited by the licensee, other than funds deposited in escrow with a bank, until authorized by the Department for release; (b) The Department shall value collateral at its current market value; (c) Collateral shall be in the name of the licensee, not in the name of third parties, and shall be pledged and assigned to the Department free and clear of claims. (7) Letters of credit shall be subject to the following additional conditions: (a) The institution issuing a letter of credit shall be an entity which has the authority to issue letters of credit and whose letter of credit operations are regulated and examined by the Massachusetts Commissioner of Banking, or the institution shall be a national bank. (b) They shall be irrevocable. The Department may accept a term of at least three years if: 1. The letter of credit is automatically renewable for additional terms unless the bank gives at least 90 days prior written notice to the Department of its intent to terminate the letter of credit at the end of the current term; and 2. The Department has the right to draw upon the letter of credit before the end of its term and convert it into a cash collateral bond if the licensee fails to replace such letter of credit with other collateral acceptable to the Department within 30 days of the bank's notice to terminate the letter of credit. (c) They shall be payable to the Department in part or in full upon demand of the Department in the case of a forfeiture or the failure of the licensee to replace the letter of credit. (d) The Department shall not accept letters of credit from a bank for a licensee in excess of 10% of the bank's capital surplus account as shown on a balance sheet certified by a Certified Public Accountant. (e) All letters of credit shall be subject to the Uniform Customs and Practice for Documentary Credits, International Chamber of Commerce Publication No. 290, including amendments and successor publications. (f) Letters of credit shall provide that the bank shall give prompt notice to the licensee and the Department of a notice received or action filed alleging the insolvency or bankruptcy of the bank, or alleging any violations of regulatory requirements which could result in suspension or revocation of the bank's charter or license to do business. (g) Upon the incapacity of a bank by reason of bankruptcy, insolvency, or suspension or revocation of its charter or license, the licensee shall be deemed to be without bond coverage in violation of 310 CMR 30.411. The licensee shall provide evidence of replacement bond coverage within 30 days of receipt of the notice described in 310 CMR 30.411(7)(f), or within another period set by order of the Department. (8) The Department may declare forfeit all or any amount of the bond if the Department finds that the licensee has violated any of the requirements of M.G.L. c. 21C, 310 CMR 30.000, or conditions of the license or a Department order issued to the licensee, and if the Department also finds that the licensee has failed to promptly remedy such a violation.