Section 4. Payment for Bodily Injury or Property Damage. The Trustee shall satisfy a third party liability claim 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 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 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 nonsudden] accidental occurrence arising from operating [Grantor's] hazardous waste treatment, storage, or disposal facility should be paid in the amount of $[ ].
[Signatures]
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 nonsudden 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 cash or securities acceptable to the Trustee.
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 Trustee's duties with respect to the trust fund solely in the interest of the beneficiary and with the care, skill, prudence and diligence under the circumstance 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 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 81a-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 the 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 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 the securities with certificates of the same issue held by the Trustee in other fiduciary capacities, or to deposit or arrange for the deposit of the securities in a qualified central depositary even though, when so deposited, the securities may be merged and held in bulk in the name of the nominee of the 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 the 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. Annual Valuations. The Trustee shall annually, at least 30 days prior to the anniversary date of establishment of the Fund, furnish to the Grantor and to the Department a statement confirming the value of the Trust. Any securities in the Fund shall be valued at market value as of no more than 60 days prior to the anniversary date of establishment of the Fund. The failure of the Grantor to object in writing to the Trustee within 90 days after the statement has been furnished to the Grantor and the Department shall constitute a conclusively binding assent by the Grantor barring the Grantor from asserting any claim or liability against the Trustee with respect to matters disclosed in the statement.
Section 11. 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 12. 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 13. Successor Trustee. The Trustee may resign or the Grantor may replace the Trustee, but the 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 the 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 14. Instructions to the Trustee. All orders, requests, and instructions by the Grantor to the Trustee shall be in writing, signed by persons as are designated in the attached Exhibit A or 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. All orders, requests and instructions by the Department to the Trustee shall be in writing, signed by the Secretary of the Department, or the designees, and the Trustee shall act and shall be fully protected in acting in accordance with the 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 EPA hereunder has occurred. The Trustee shall have no duty to act in the absence of the orders, requests and instructions from the Grantor and/or the Department, except as provided for herein.
Section 15. Notice of Nonpayment. If a payment for bodily injury or property damage is made under Section 4 of this trust, the Trustee shall notify the Grantor of the payment and the amount(s) thereof within 5 working days. The Grantor shall, on or before the anniversary date of the establishment of the Fund following the notice, either make payments to the Trustee in amounts sufficient to cause the trust to return to its value immediately prior to the payment of claims under Section 4, or shall provide written proof to the Trustee that other financial assurance for liability coverage has been obtained equaling the amount necessary to return the trust to its value prior to the payment of claims. If the Grantor does not either make payments to the Trustee or provide the Trustee with proof, the Trustee shall within 10 working days after the anniversary date of the establishment of the Fund provide a written notice of nonpayment to the Department.
Section 16. 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 if the Grantor ceases to exist.
Section 17. Irrevocability and Termination. Subject to the right of the parties to amend this Agreement as provided in Section 16, 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 delivered to the Grantor.
The Department will agree to termination of the Trust when the owner or operator substitutes alternate financial assurance as specified in this section.
Section 18. 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 or 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 the defense.
Section 19. Choice of Law. This Agreement shall be administered, construed and enforced according to the laws of the State of Wisconsin.
Section 20. 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 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 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 664.0151 (13), Wis. Adm. Code, as the rules were constituted on the date first above written.
__________________
[Signature of Grantor]
[Title]
Attest:
[Title]
[Seal] _____
[Signature of Trustee]
Attest:
[Title]
[Seal]
(b) The following is an example of the certification of acknowledgment which must accompany the trust agreement for a trust fund as specified in s.
NR 664.0147 (10) or
665.0147 (10).
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 the instrument is the 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 664.0151 History
History: CR 05-032: cr.
Register July 2006 No. 607, eff. 8-1-06; corrections in (6) (b), (11) made under s. 13.93 (4) (b) 7., Stats.,
Register March 2013 No. 687;
CR 16-007: am. (7)
Register July 2017 No. 739, eff. 8-1-17.
NR 664.0170
NR 664.0170 Applicability. This subchapter applies to owners and operators of all hazardous waste facilities that store hazardous waste in containers, except as s.
NR 664.0001 provides otherwise.
NR 664.0170 Note
Note: Under ss.
NR 661.0007 and
661.0033 (3), if a hazardous waste is emptied from a container the residue remaining in the container is not regulated as hazardous waste if the container is “empty” as defined in s.
NR 661.0007. In that event, management of the container is exempt from the requirements of this subchapter.
NR 664.0171
NR 664.0171 Condition of containers. If a container holding hazardous waste is not in good condition (e.g., severe rusting, apparent structural defects) or if it begins to leak, the owner or operator shall transfer the hazardous waste from this container to a container that is in good condition or manage the waste in some other way that complies with the requirements of this chapter.
NR 664.0171 History
History: CR 05-032: cr.
Register July 2006 No. 607, eff. 8-1-06.
NR 664.0172
NR 664.0172 Compatibility of waste with containers. The owner or operator shall use a container made of or lined with materials which will not react with, and are otherwise compatible with, the hazardous waste to be stored, so that the ability of the container to contain the waste is not impaired.
NR 664.0172 History
History: CR 05-032: cr.
Register July 2006 No. 607, eff. 8-1-06.
NR 664.0173(1)(1)
A container holding hazardous waste shall always be closed during storage, except when it is necessary to add or remove waste.
NR 664.0173(2)
(2) A container holding hazardous waste may not be opened, handled or stored in a manner which may rupture the container or cause it to leak.
NR 664.0173 Note
Note: Reuse of containers in transportation is governed by U.S. department of transportation regulations including those set forth in
49 CFR 173.28.
NR 664.0173 History
History: CR 05-032: cr.
Register July 2006 No. 607, eff. 8-1-06.
NR 664.0174
NR 664.0174 Inspections. At least weekly, the owner or operator shall inspect areas where containers are stored, looking for leaking containers and for deterioration of containers and the containment system caused by corrosion or other factors. The owner or operator shall comply with ss.
NR 664.0015 (3) and
664.0171 for remedial action required if deterioration or leaks are detected.
NR 664.0175(1)(1)
Container storage areas shall have a containment system that is designed and operated in accordance with sub.
(2), except as otherwise provided by sub.
(3).
NR 664.0175(2)
(2) A containment system shall be designed and operated to meet all of the following requirements:
NR 664.0175(2)(a)
(a) A base shall underlie the containers which is free of cracks or gaps and is sufficiently impervious to contain leaks, spills and accumulated precipitation until the collected material is detected and removed.
NR 664.0175(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 664.0175(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. Containers that do not contain free liquids need not be considered in this determination.
NR 664.0175(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 which might enter the system.
NR 664.0175(2)(e)
(e) Spilled or leaked waste 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 664.0175 Note
Note: If the collected material is a hazardous waste under ch.
NR 661, it shall be managed as a hazardous waste in accordance with all applicable requirements of chs.
NR 662 to
666. If the collected material is discharged through a point source to waters of the state, it is subject to the requirements of ss.
283.31 and
283.33, Stats.
NR 664.0175(3)
(3) Storage areas that store containers holding only wastes that do not contain free liquids need not have a containment system defined by sub.
(2), except as provided by sub.
(4), provided that either of the following conditions is met:
NR 664.0175(3)(a)
(a) The storage area is sloped or is otherwise designed and operated to drain and remove liquid resulting from precipitation.
NR 664.0175(3)(b)
(b) The containers are elevated or are otherwise protected from contact with accumulated liquid.
NR 664.0175(4)
(4) Storage areas that store containers holding F020, F021, F022, F023, F026 or F027 wastes that do not contain free liquids shall have a containment system defined by sub.
(2).
NR 664.0175 History
History: CR 05-032: cr.
Register July 2006 No. 607, eff. 8-1-06.
NR 664.0176
NR 664.0176 Special requirements for ignitable or reactive waste. Containers holding ignitable or reactive waste shall be located at least 15 meters (50 feet) from the facility's property line.
NR 664.0176 Note
Note: See s.
NR 664.0017(1) for additional requirements.
NR 664.0176 History
History: CR 05-032: cr.
Register July 2006 No. 607, eff. 8-1-06.
NR 664.0177
NR 664.0177 Special requirements for incompatible wastes.
