(3) Property loaned by [insert Grantor];
(4) Personal property in the care, custody or control of [insert Grantor];
(5) That particular part of real property on which [insert Grantor] or any contractors or subcontractors working directly or indirectly on behalf of [insert Grantor] are performing operations, if the property damage arises out of these operations.
In the event of combination with another mechanism for liability coverage, the Fund shall be considered [insert “primary” or “excess”] coverage.
The Fund is established initially as consisting of the proceeds of the letter of credit deposited into the Fund. Such proceeds and any other property subsequently transferred to the Trustee is 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 may not be responsible nor shall it undertake any responsibility for the amount or adequacy of, nor any duty to collect from the Grantor, any payments necessary to discharge any liabilities of the Grantor established by the department.
Section 4. Payment for Bodily Injury or Property Damage. The Trustee shall satisfy a third-party liability claim by drawing on the letter of credit described in Schedule B and by making payments from the Fund only upon receipt of one of the following documents:
(a) Certification from the Grantor and the third-party claimant(s) that the liability claim should be paid. The certification shall 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 Grantor] 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 non-sudden] accidental occurrence arising from operating [Grantor's] facility should be paid in the amount of $[ ]
[Signature]
Grantor
[Signatures]
Claimant(s)
(b) A valid final court order establishing a judgment against the Grantor for bodily injury or property damage caused by sudden or non-sudden accidental occurrences arising from the operation of the Grantor's facility or group of facilities.
Section 5. Payments Comprising the Fund. Payments made to the Trustee for the Fund shall consist of the proceeds from the letter of credit drawn upon by the Trustee in accordance with the requirements of s.
NR 661.0151 (11), Wis. Adm. Code
, and Section 4 of this Agreement.
Section 6. Trustee Management. The Trustee shall invest and reinvest the 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 the duties with respect to the trust fund solely in the interest of the beneficiary 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 facilities, or any of their affiliates as defined in the Investment Company Act of 1940, as amended,
15 USC 80a-2 (a), may 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 a 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 USC 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 depositary even though, when so deposited, such securities may be merged and held in bulk in the name of the nominee of such depositary 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 to 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 question 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 may 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 a writing sent to the Grantor, the department 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, certifications of valid claims, and instructions to the Trustee shall be in writing, signed by such persons as are designated in the attached Exhibit A or such other designees as the Grantor may designate by amendments to Exhibit A. The Trustee shall be fully protected in acting without inquiry in accordance with the Grantor's 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 department 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 department, except as provided for herein.
Section 14. Amendment of Agreement. This Agreement may be amended by an instrument in writing executed by the Grantor, the Trustee, and the department, or by the Trustee and the department.
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 agreement of the Grantor, the Trustee, and the department, or by the Trustee and the department, if the Grantor ceases to exist. Upon termination of the Trust, all remaining trust property, less final trust administration expenses, shall be paid to the Grantor.
The department will agree to termination of the Trust when the owner or operator substitutes alternative financial assurance as specified in this section.
Section 16. Immunity and indemnification. The Trustee may 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 and the department issued in accordance with this Agreement. The Trustee shall be indemnified and saved harmless by the Grantor or from the Trust Fund, or both, 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 [enter name of State].
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 may not affect the interpretation of 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 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 s.
NR 661.0151 (13), Wis. Adm. Code
, as such regulations were constituted on the date first above written.
[Signature of Grantor]
[Title]
Attest:
[Title]
[Seal]
[Signature of Trustee]
Attest:
[Title]
[Seal]
NR 661.0151(13)(b)
(b) The following is an example of the certification of acknowledgement which shall accompany the trust agreement for a standby trust fund as specified in s.
NR 661.0147 (8).
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]
NR 661.0151 History
History: CR 19-082: cr.
Register August 2020 No. 776, eff. 9-1-20; correction in (2) (form), (3) (form), (5) (form), (6) (form), (7) (form), (8) (form), (11) (form), (12) (form), (13) (form) made under s.
35.17, Stats.,
Register August 2020 No. 776;
correction in (5) (form), (6) (form), (7) (a) (form), (b) (form) made under ss. 13.92 (4) (b) 7. and 35.17, Stats., Register April 2021 No. 784. NR 661.0170
NR 661.0170 Applicability. This subchapter applies to hazardous secondary material excluded under the remanufacturing exclusion under s.
NR 661.0004 (1) (za) and stored in containers.
NR 661.0170 History
History: CR 19-082: cr. Register August 2020 No. 776, eff. 9-1-20. NR 661.0171
NR 661.0171
Condition of containers. If a container holding hazardous secondary material is not in good condition, such as having severe rusting, apparent structural defects or if it begins to leak, the hazardous secondary material shall be transferred from this container to a container that is in good condition or managed in some other way that complies with the requirements of this chapter.
NR 661.0171 History
History: CR 19-082: cr. Register August 2020 No. 776, eff. 9-1-20. NR 661.0172
NR 661.0172
Compatibility of hazardous secondary material with containers. The container shall be made of or lined with materials which will not react with, and are otherwise compatible with, the hazardous secondary material to be stored, so that the ability of the container to contain the material is not impaired.
NR 661.0172 History
History: CR 19-082: cr.
Register August 2020 No. 776, eff. 9-1-20.
NR 661.0173(1)(1)
A container holding hazardous secondary material shall always be closed during storage, except when it is necessary to add or remove the hazardous secondary material.
NR 661.0173(2)
(2) A container holding hazardous secondary material may not be opened, handled, or stored in a manner that may rupture the container or cause it to leak.
NR 661.0173 History
History: CR 19-082: cr.
Register August 2020 No. 776, eff. 9-1-20.
NR 661.0175(1)(1)
Container storage areas shall have a containment system that is designed and operated in accordance with sub.
(2).
NR 661.0175(2)
(2)
A containment system shall be designed and operated to meet all of the following conditions:
NR 661.0175(2)(a)
(a) A base shall underlie the containers. The base shall be free of cracks or gaps and sufficiently impervious to contain leaks, spills, and accumulated precipitation until the collected material is detected and removed.
NR 661.0175(2)(b)
(b) The base shall be sloped, or the containment system shall be otherwise designed and operated to drain and remove liquids resulting from leaks, spills, or precipitation, unless the containers are elevated or are otherwise protected from contact with accumulated liquids.
NR 661.0175(2)(c)
(c) The containment system shall have sufficient capacity to contain 10% of the volume of containers or the volume of the largest container, whichever is greater.
NR 661.0175(2)(d)
(d) Run-on into the containment system shall be prevented unless the collection system has sufficient excess capacity in addition to that required in par.
(c) to contain any run-on that might enter the system.
NR 661.0175(2)(e)
(e) Spilled or leaked material and accumulated precipitation shall be removed from the sump or collection area in as timely a manner as is necessary to prevent overflow of the collection system.
NR 661.0175 History
History: CR 19-082: cr.
Register August 2020 No. 776, eff. 9-1-20.
NR 661.0176
NR 661.0176
Special requirements for ignitable or reactive hazardous secondary material. A container holding ignitable or reactive hazardous secondary material shall be located at least 15 meters from the facility's property line.
NR 661.0176 History
History: CR 19-082: cr.
Register August 2020 No. 776, eff. 9-1-20.
NR 661.0177
NR 661.0177
Special requirements for incompatible materials. NR 661.0177(1)(1)
Incompatible materials may not be placed in the same container.
NR 661.0177(2)
(2) Hazardous secondary material may not be placed in an unwashed container that previously held an incompatible material.
NR 661.0177(3)
(3) A storage container holding a hazardous secondary material that is incompatible with any other materials stored nearby shall be separated from the other materials or protected from them by means of a dike, berm, wall, or other device.
NR 661.0177 History
History: CR 19-082: cr.
Register August 2020 No. 776, eff. 9-1-20.
NR 661.0179
NR 661.0179
Air emission standards. A remanufacturer or other person that stores or treats the hazardous secondary material shall manage all hazardous secondary material placed in a container in accordance with the applicable requirements under subchs.
AA,
BB, and
CC.
NR 661.0179 History
History: CR 19-082: cr.
Register August 2020 No. 776, eff. 9-1-20.
NR 661.0190(1)(1)
The requirements of this subchapter apply to tank systems for storing or treating hazardous secondary material excluded under the remanufacturing exclusion under s.
NR 661.0004 (1) (za).
NR 661.0190(2)
(2) Tank systems, including sumps, as defined in s.
NR 660.10 (114), that serve as part of a secondary containment system to collect or contain releases of hazardous secondary material are exempted from the requirements specified in s.
NR 661.0193 (1).
NR 661.0190 History
History: CR 19-082: cr.
Register August 2020 No. 776, eff. 9-1-20.
