Wisconsin Legislature: NR 664.0151 Text

Guarantee made this [date] by [name of guaranteeing entity], a business corporation organized under the laws of [if incorporated within the United States insert “the State of ____" and insert name of State; if incorporated outside the United States insert the name of the country in which incorporated, the principal place of business within the United States, and the name and address of the registered agent in the State of the principal place of business], herein referred to as guarantor. This guarantee is made on behalf of [owner or operator] of [business address], which is one of the following: “our subsidiary;" “a subsidiary of [name and address of common parent corporation], of which guarantor is a subsidiary;" or “an entity with which guarantor has a substantial business relationship, as defined in s. NR 664.0141 (8) or 665.0141 (8), Wis. Adm. Code", to any and all third parties who have sustained or may sustain bodily injury or property damage caused by [sudden and/or nonsudden] accidental occurrences arising from operation of the facility(ies) covered by this guarantee.

Recitals

1. Guarantor meets or exceeds the financial test criteria and agrees to comply with the reporting requirements for guarantors as specified in ss. NR 664.0147 (7) and 665.0147 (7), Wis. Adm. Code.

2. [Owner or operator] owns or operates the following hazardous waste management facility(ies) covered by this guarantee: [List for each facility: EPA identification number, name and address; and if guarantor is incorporated outside the United States list the name and address of the guarantor's registered agent in each State.] This corporate guarantee satisfies RCRA third-party liability requirements for [insert “sudden" or “nonsudden" or “both sudden and nonsudden"] accidental occurrences in above-named owner or operator facilities for coverage in the amount of [insert dollar amount] for each occurrence and [insert dollar amount] annual aggregate.

3. For value received from [owner or operator], guarantor guarantees to any and all third parties who have sustained or may sustain bodily injury or property damage caused by [sudden and/or nonsudden] accidental occurrences arising from operations of the facility(ies) covered by this guarantee that in the event that [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 occurrences, arising from the operation of the above-named facilities, or fails to pay an amount agreed to in settlement of a claim arising from or alleged to arise from the injury or damage, the guarantor will satisfy the judgment(s), award(s) or settlement agreement(s) up to the limits of coverage identified above.

4. The obligation does not apply to any of the following:

(a) 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. This exclusion does not apply to liability for damages that [insert owner or operator] would be obligated to pay in the absence of the contract or agreement.

(b) Any obligation of [insert owner or operator] under a workers' compensation, disability benefits or unemployment compensation law or any similar law.

(1) An employee of [insert owner or operator] arising from, and in the course of, employment by [insert owner or operator]; 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 owner or operator]. This exclusion applies:

(A) Whether [insert owner or operator] 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 owner or operator];

(2) Premises that are sold, given away or abandoned by [insert owner or operator] if the property damage arises out of any part of those premises;

(3) Property loaned to [insert owner or operator];

(4) Personal property in the care, custody or control of [insert owner or operator];

(5) That particular part of real property on which [insert owner or operator] or any contractors or subcontractors working directly or indirectly on behalf of [insert owner or operator] are performing operations, if the property damage arises out of these operations.

5. Guarantor agrees that if, at the end of any fiscal year before termination of this guarantee, the guarantor fails to meet the financial test criteria, guarantor must send within 90 days, by certified mail, notice to the Department, and if the facilities covered by this guarantee are in more than one state, to each state agency regulating hazardous waste or the EPA regional administrator if the facility is located in an unauthorized state, and to [owner or operator] that he intends to provide alternate liability coverage as specified in ss. NR 664.0147 and 665.0147, Wis. Adm. Code, or 40 CFR 264.147 and 265.147 or other state requirements that are equivalent to 40 CFR 264.147 and 265.147, as applicable, in the name of [owner or operator]. Within 120 days after the end of the fiscal year, the guarantor shall establish the liability coverage unless [owner or operator] has done so.

6. The guarantor agrees to notify the Department 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.

7. Guarantor agrees that within 30 days after being notified by the Department of a determination that guarantor no longer meets the financial test criteria or that the guarantor is disallowed from continuing as a guarantor, the guarantor shall establish alternate liability coverage as specified in s. NR 664.0147 or 665.0147, Wis. Adm. Code, 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 ss. NR 664.0147 and 665.0147, Wis. Adm. Code, provided that the modification must become effective only if the Department 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] shall comply with the applicable requirements of ss. NR 664.0147 and 665.0147, Wis. Adm. Code, 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]:

Guarantor may terminate this guarantee by sending notice by certified mail to the Department, and if the facilities covered by this guarantee are in more than one state, to each state agency regulating hazardous waste or the EPA regional administrator if the facility is located in an unauthorized state and to [owner or operator], provided that this guarantee may not be terminated unless and until [the owner or operator] obtains Department approval, and the approval from the state agency regulating hazardous waste or the EPA Regional Administrator approval if the facility is operating in unauthorized states of alternate liability coverage complying with ss. NR 664.0147 and 665.0147, Wis. Adm. Code, 40 CFR 264.147 or 265.147 or other state requirements that are equivalent to 40 CFR 264.147 or 265.147.

[Insert the following language if the guarantor is a firm qualifying as a guarantor due to its “substantial business relationship" with the owner or operator]:

Guarantor may terminate this guarantee 120 days following receipt of notification, through certified mail, by the Department, and if the facilities covered by this guarantee are in more than one state, by each state agency regulating hazardous waste or the EPA regional administrator if the facility is located in an unauthorized state 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 must 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

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 s. NR 664.0151 (8), Wis. Adm. Code, as the rules 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 of notary:_____

NR 664.0151(9) (9) A hazardous waste facility liability endorsement as required in s. NR 664.0147 or 665.0147 must be worded as follows, except 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 s. NR 664.0147 or 665.0147, Wis. Adm. Code. 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 the 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 may 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 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 s. NR 664.0147 (6) or 665.0147 (6), Wis. Adm. Code.

(c) Whenever requested by the Wisconsin Department of Natural Resources, the Insurer agrees to furnish to the Department 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 the written notice is received by the Department, and if the facilities covered by this endorsement are in more than one state, each state agency regulating hazardous waste or the EPA Regional Administrator if the facility is located in an unauthorized state.

NR 664.0151(9)(e) (e) Any other termination of this endorsement will be effective only upon written notice and only after the expiration of 30 days after a copy of the written notice is received by the Department, and if the facilities covered by this endorsement are in more than one state, each state agency regulating hazardous waste or the EPA Regional Administrator if the facility is located in an unauthorized state.

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_.

I hereby certify that the wording of this endorsement is identical to the wording specified in s. NR 664.0151 (9), Wis. Adm. Code, as the rules were 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]

NR 664.0151(10) (10) A certificate of liability insurance as required in s. NR 664.0147 or 665.0147 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 s. NR 664.0147 or 665.0147, Wis. Adm. Code. 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. 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 may not relieve the Insurer of its obligations under the policy.

(c) Whenever requested by the Wisconsin Department of Natural Resources, the Insurer agrees to furnish to the Department 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 60 days after a copy of the written notice is received by the Department, and if the facilities covered by this insurance are in more than one state, each state agency regulating hazardous waste or the EPA Regional Administrator if the facility is located in an unauthorized state.

(e) Any other termination of the insurance will be effective only upon written notice and only after the expiration of 30 days after a copy of the written notice is received by the Department, and if the facilities covered by this insurance are in more than one state, each state agency regulating hazardous waste or the EPA Regional Administrator if the facility is located in an unauthorized state. I hereby certify that the wording of this instrument is identical to the wording specified in s. NR 664.0151 (10), Wis. Adm. Code, as the rules were 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]

NR 664.0151(11) (11) A letter of credit, as specified in s. NR 664.0147 (8) or 665.0147 (8), must be worded as follows, except that instructions in brackets are to be replaced with the relevant information and the brackets deleted:

Irrevocable Letter of Credit

Name and Address of Issuing Institution_____

Secretary_____

Wisconsin Department of Natural Resources

Dear Sir or Madam: We hereby establish our Irrevocable Letter of Credit No. ______ in the favor of ["any and all third-party liability claimants"], 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 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 benefits, or unemployment compensation law or any similar law.