Code of Massachusetts Regulations › 310 CMR - DEPARTMENT OF ENVIRONMENTAL PROTECTION › Title 310 CMR 30.000 - Hazardous waste › GENERAL PROVISIONS › Section 30.910 - Special Options for Facilities Relying on the Hazardous Waste Licensees Insolvency Fund

Current through Register 1525, July 5, 2024
(1)
Coverage for sudden accidental occurrences
. The owner
				or operator of a hazardous waste treatment, storage, or disposal facility may
				demonstrate assurance of financial responsibility for bodily injury and
				property damage to third parties caused by each sudden accidental occurrence
				arising from operation of the facility by using one of the options specified in
				310 CMR 30.910 in lieu of the options specified in
				310 CMR 30.908(1)(a)
				through (d), but only if the Hazardous Waste
				Licensees Involvency Fund actually exists, and the owner or operator meets the
				eligibility requirements set forth in 310 CMR 30.910(1)(a), the amount of
				coverage for sudden accidental occurrences is in compliance with 310 CMR
				30.910(1)(b), the form of coverage is in compliance with 310 CMR 30.910, and
				the owner or operator obtains and maintains in effect a contract with a Claims
				Administrator in compliance with 310 CMR 30.910(1)(e); otherwise, the owner or
				operator shall use the options set forth in
				310 CMR 30.908(1)(a)
				through (d). In all events, the provisions of
				the introductory paragraph of
				310 CMR
				30.908(1), and the
				provisions of
				310 CMR 30.908(3) through
				(8), shall apply to 310 CMR 30.910. As used
				in 310 CMR 30.910(1), the term "Claims Administrator" shall mean a person who
				shall be responsible for the processing and administration of all requests to
				make payments from a trust fund, standby trust fund, or letter of credit
				pursuant to 310 CMR 30.910(1). The owner or operator of each facility shall
				give notice to both the Department and the Claims Administrator of every claim
				for bodily injury and/or property damage caused by a sudden accidental
				occurrence or occurrences arising from the operation of the facility(ies). The
				owner or operator of each facility shall give such notice to both the
				Department and the Claims Administrator as soon as possible and in any event no
				later than 30 days after learning of such claim. The owner or operator of each
				facility shall give notice to both the Department and the Claims Administrator
				of every judgment against the owner or operator for bodily injury and/or
				property damage caused by a sudden accidental occurrence or occurrences arising
				from the operation of the facility. The owner or operator of each facility
				shall give such notice to both the Department and the Claims Administrator as
				soon as possible and in any event no later than 30 days after learning of said
				judgment.
(a)
Eligibility
. An owner or operator may use the options
				set forth in 310 CMR 30.910 only if the owner or operator persuades the
				Department that, despite reasonable efforts, he could not obtain at all, or
				could not obtain at an annual cost equal to or less than the applicable amount
				set forth in 310 CMR 30.910(1)(b), liability coverage in compliance with
				310 CMR 30.908(1)(a)
				 for sudden accidental occurrences in the
				amount of at least $3-million per each sudden accidental occurrence with an
				annual aggregate of at least $6-million, exclusive of legal defense
				costs.
(b)
Required
				Amount
. If the owner or operator is eligible to, and does, use the
				options set forth in 310 CMR 30.910, the minimum amount of coverage for sudden
				accidental occurrences shall be as set forth below, or such other amount as
				required by the Department pursuant to
				310 CMR 30.908(4) or
				(5). The required amount shall be in the
				funding mechanism when the funding mechanism is first established, and an
				amount equal to said required amount shall be placed in either the same funding
				mechanism or a new funding mechanism on or before April 1 of each year
				thereafter for as long as 310 CMR 30.910 remains in effect. Except for payment
				of claims or any other payments made in compliance with 310 CMR 30.910 from a
				funding mechanism established pursuant to 310 CMR 30.910, and except as may be
				otherwise provided by law, these amounts shall accumulate and aggregate for at
				least as long as the Hazardous Waste Licensees Insolvency Fund exists. However,
				the Department may release all funds dedicated to a funding mechanism upon the
				showing by an owner or operator that the owner or operator no longer meets the
				eligibility requirements set forth in 310 CMR 30.910(1)(a), and has a valid
				claims-made policy which satisfies the requirements of
				310 CMR 30.908(1)(a)
				through (d), and if applicable,
				310 CMR 30.908(2)(a)
				through (d), provided that the policy
				retroactively covers any claim made on or after February 13, 1984, for as long
				as the facility remains subject to
				310
				CMR 30.900.
1. If the facility is licensed only to store
				only waste oil, and does no more than this; or if the facility is a facility
				having interim status pursuant to RCRA and said facility is authorized only to
				store only waste oil, and does no more than this; the required amount shall be
				$15, 000 per year.
2. If the
				facility is licensed only to store less than 50, 000 gallons of any hazardous
				waste, other than waste oil, at any one time, and does no more than this; or if
				the facility is a facility having interim status pursuant to RCRA and said
				facility is authorized only to store less than 50, 000 gallons of any hazardous
				waste, other than waste oil, at any one time, and does no more than this; the
				required amount shall be $25, 000 per year.
3. If the facility is licensed only to store
				50, 000 gallons or more of any hazardous waste, other than waste oil, at any
				one time, and does no more than this; or if the facility is a facility having
				interim status pursuant to RCRA and said facility is authorized only to store
				50, 000 gallons or more of any hazardous waste, other than waste oil, at any
				one time, and does no more than this; the required amount shall be $60, 000 per
				year.
4. For all other facilities,
				the required amount shall be $75, 000 per year.
(c)
Trust Fund
				Requirements
. An owner or operator may demonstrate the required
				coverage by establishing a sudden accidental occurrence special trust fund,
				which shall be established and maintained in compliance with the following
				requirements:
1. The owner or operator shall
				establish the trust fund, and shall send an originally signed duplicate of the
				trust agreement to the Department, within the applicable time period prescribed
				in
				310 CMR 30.901(2) or
				(6).
2. The trustee shall be a bank or other
				financial institution which has the authority to act as a trustee and whose
				trust operations are regulated and examined by the Massachusetts Commissioner
				of Banking, or the trustee shall be a national bank.
3. The wording of the trust agreement shall
				be identical to the wording specified in 310 CMR 30.910(3)(a), and the trust
				agreement shall be accompanied by a formal certification of acknowledgement
				identical to the wording specified in 310 CMR 30.910(3)(b).
4. On the date of the initial establishment
				of the sudden accidental occurrence special trust fund, the value of the trust
				fund shall be at least the amount required pursuant to 310 CMR 30.910(1)(b), or
				such other amount as required by the Department pursuant to
				310 CMR 30.908(4) or
				(5).
5. If an owner or operator substitutes other
				financial assurance, as specified in
				310 CMR 30.908(1)
				 or 30.910, for the sudden accidental
				occurrence special trust fund, he may submit a written request to the
				Department for release of the amount in the trust fund.
6. Any person who obtains final judgment
				against the owner or operator for bodily injury and/or property damage caused
				by a sudden accidental occurrence or occurrences arising from the operation of
				the facility may request payment from the sudden accidental occurrence
				liability trust fund in satisfaction of the judgment by submitting to the
				Claims Administrator a certified copy of the judgment and a statement, signed
				subject to
				310 CMR
				30.006 and
				30.009, that the
				judgment was either (1) rendered by the highest court in the jurisdiction where
				the action was brought and the owner or operator exhausted all rights of
				appeal, or (2) rendered by the highest court which rendered a judgment and no
				appeal was made by the owner or operator to a higher court within the time
				allowed by applicable statute or rule, or (3) agreed to by the owner or
				operator.
7. After receiving the
				material described in 310 CMR 30.910(1)(c)6., the Claims Administrator shall
				determine whether the judgment was either (1) rendered by the highest court in
				the jurisdiction where the action was brought and the owner or operator
				exhausted all rights of appeal, or (2) rendered by the highest court which
				rendered a judgment and no appeal was made by the owner or operator to a higher
				court within the time allowed by applicable statute or rule, or (3) agreed to
				by the owner or operator. If so, the Claims Administrator shall instruct the
				trustee to pay to the person who obtained the judgment such amounts, not to
				exceed the amount of the judgment or the amount then in the sudden accidental
				occurrence special trust fund, whichever amount is less, as the Claims
				Administrator may specify in writing.
8. To the extent such action is authorized or
				required by law, the Claims Administrator or the Department may instruct the
				trustee to pay to the Hazardous Waste Licensees Insolvency Fund or to the
				Commonwealth of Massachusetts such amounts, not to exceed the amount then in
				the trust fund, as may be authorized or required by law.
9. No trust shall be terminated without prior
				written consent of the Department. The Department may agree to termination of
				the trust when the Department is persuaded that such action is consistent with
				310 CMR 30.910(1)(c)5. and
a. the Department
				is persuaded that the owner or operator has substituted alternate financial
				assurance as specified in
				310 CMR 30.908(1)
				 or 30.910, or
b. when the Department certifies closure of
				the facility pursuant to
				310 CMR 30.099(6)
				 or
				30.586(2);
				provided, however, that amounts may be paid to the facility only to the extent
				sufficient funds are available to pay outstanding claims and other obligations
				that are unpaid or unresolved, and that no amounts whatever shall be paid to
				the facility for as long as the Hazardous Waste Licensees Insolvency Fund
				exists except as may be otherwise provided by law. However, the Department may
				release all funds dedicated to the trust fund upon the showing by an owner or
				operator that the owner or operator no longer meets the eligibility
				requirements set forth in 310 CMR 30.910(1)(a), and has a valid claims-made
				policy which satisfies the requirements of
				310 CMR 30.908(1)(a)
				through (d), and if applicable,
				310 CMR 30.908(2)(a)
				through (d), provided that the policy
				retroactively covers any claim made on or after February 13, 1984, for as long
				as the facility remains subject to
				310
				CMR 30.900.
(d)
Letter of Credit
				Requirements
. An owner or operator may demonstrate the required
				coverage by obtaining an irrevocable letter of credit which shall be obtained
				and maintained in compliance with the following requirements:
1. The owner or operator shall obtain the
				letter of credit and submit it to the Department within the applicable time
				period prescribed in
				310 CMR 30.901(2) or
				(6).
2. The institution issuing the 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.
3. The wording of the letter
				of credit shall be identical to the wording specified in 310 CMR
				30.910(3)(c).
4. The letter of
				credit shall be accompanied by a letter from the owner or operator which shall
				state:
a. The letter of credit
				number;
b. The name of the issuing
				institution;
c. The date of
				issuance of the letter of credit;
d. The EPA identification number(s) of the
				facility;
e. The name and address
				of the facility; and
f. The amount
				of funds assured by the letter of credit.
5. The letter of credit shall be irrevocable
				and shall be issued for a period of at least one year. The letter of credit
				shall provide that the expiration date will be automatically extended for a
				period of at least one year unless, no later than 120 days before the current
				expiration date pursuant to the terms of the letter of credit, the issuing
				institution notifies the owner or operator, the Claims Administrator, and the
				Department by certified mail of a decision not to extend the expiration date.
				Under the terms of the letter of credit, the 120 days shall not begin before
				the date when the owner or operator, the Claims Administrator, and the
				Department have received the notice, as shown by the latest return
				receipt.
6. If the owner or
				operator does not establish alternate financial assurance as required by
				310 CMR 30.908(1)
				 and does not obtain written approval from
				the Department of any such alternate financial assurance within 90 days of
				receipt by the owner or operator, by the Claims Administrator, and by the
				Department of a notice that the issuing institution will not extend the letter
				of credit beyond the current expiration date, the Department shall draw on the
				letter of credit. The Department may delay drawing on the letter of credit if
				the issuing institution grants an extension of the term of the letter of
				credit. During the last 30 days of any such extension, the Department shall
				draw on the letter of credit if the owner or operator has failed to provide
				alternate financial assurance as specified in 310 CMR 30.910 or has failed to
				obtain written approval by the Department of such assurance.
7. An owner or operator who uses a letter of
				credit to satisfy the requirements of 310 CMR 30.910 shall also establish a
				standby trust fund. Under the terms of the letter of credit, all payments made
				thereunder shall, in accordance with instructions from the Claims Administrator
				or the Department, either be paid by the issuing institution directly to a
				person described in 310 CMR 30.910(1)(d)9., or paid by the issuing institution
				directly to the Hazardous Waste Licensees Insolvency Fund or to the
				Commonwealth of Massachusetts in accordance with 310 CMR 30.910(1)(d)11., or
				deposited by the issuing institution directly into the standby trust fund. This
				standby trust fund shall meet the requirements in 310 CMR 30.910(1)(c), except
				that:
a. An originally signed duplicate of the
				trust agreement shall be submitted to the Department with the letter of credit;
				and
b. Until the standby trust fund
				is funded pursuant to the requirements of 310 CMR 30.910, the following are not
				required:
(i) payment into the trust fund as
				specified in 310 CMR 30.910(1)(c);
(ii) annual valuations as required by the
				trust agreement (
See
310 CMR 30.910(3)(a)10.); and
(iii) notices of nonpayment as required by
				the trust agreement (
See
310 CMR 30.910(3)(a)15.).
8. If an owner or
				operator substitutes other financial assurance as specified in
				310 CMR 30.908(1)
				 for all or part of the amount of the letter
				of credit, he may submit a written request to the Department for release of the
				amount in excess of the amount to be covered by the letter of credit.
9. Any person who obtains final judgment
				against the owner or operator for bodily injury and/or property damage caused
				by a sudden accidental occurrence or occurrences arising from the operation of
				the facility may request payment from the letter of credit in satisfaction of
				the judgment by submitting to the Claims Administrator a certified copy of the
				judgment and a statement, signed subject to
				310 CMR
				30.006 and
				30.009, that the
				judgment was either (1) rendered by the highest court in the jurisdiction where
				the action was brought and the owner or operator exhausted all rights of
				appeal, or (2) rendered by the highest court which rendered a judgment and no
				appeal was made by the owner or operator to a higher court within the time
				allowed by applicable statute or rule, or (3) agreed to by the owner or
				operator.
10. After receiving the
				material described in 310 CMR 30.910(1)(d)9., the Claims Administrator shall
				determine whether the judgment was either (1) rendered by the highest court in
				the jurisdiction where the action was brought and the owner or operator
				exhausted all rights of appeal, or (2) rendered by the highest court which
				rendered a judgment and no appeal was made by the owner or operator to a higher
				court within the time allowed by applicable statute or rule, or (3) agreed to
				by the owner or operator. If so, the Claims Administrator shall instruct the
				institution issuing the letter of credit to pay either to the person making the
				claim or into the standby trust fund, or the Claims Administrator shall
				instruct the trustee of the standby trust fund to pay to the person who
				obtained the judgment, such amounts, not to exceed the amount of the judgment
				or the amount in the letter of credit, whichever amount is less, as the Claims
				Administrator may specify in writing.
11. To the extent such action is authorized
				or required by law, the Claims Administrator or the Department may instruct the
				institution issuing the letter of credit to pay to the Hazardous Waste
				Licensees Insolvency Fund or to the Commonwealth of Massachusetts such amounts,
				not to exceed the amount then in the letter of credit, as may be authorized or
				required by law.
12. No letter of
				credit shall be terminated without prior written consent of the Department. The
				Department may return the letter of credit to the issuing institution for
				termination when the Department is persuaded that such action is consistent
				with 310 CMR 30.910(1)(c)8. and
a. the
				Department is persuaded that the owner or operator has substituted alternate
				financial assurance as specified in
				310 CMR 30.908(1)
				 or 30.910, or
b. when the Department certifies closure of
				the facility pursuant to
				310 CMR 30.099(6)
				 or
				30.586(2);
				provided, however, that amounts may be paid to the facility only to the extent
				sufficient funds are available to pay outstanding claims and other obligations
				that are unpaid or unresolved, and that no amounts whatever shall be paid to
				the facility for as long as the Hazardous Waste Licensees Insolvency Fund
				exists except as may be otherwise provided by law. However, the Department may
				release all funds dedicated to a letter of credit upon the showing by an owner
				or operator that the owner or operator no longer meets the eligibility
				requirements set forth in 310 CMR 30.910(1)(a), and has a valid claims-made
				policy which satisfies the requirements of
				310 CMR 30.908(1)(a)
				through (d), and if applicable,
				310 CMR 30.908(2)(a)
				through (d), provided that the policy
				retroactively covers any claim made on or after February 13, 1984, for as long
				as the facility remains subject to
				310
				CMR 30.900.
(e)
Requirements for a Contract
				with a Claims Administrator
. Each contract between a Claims
				Administrator and an owner or operator shall conform to 310 CMR 30.910(1)(e).
1. Each contract between a Claims
				Administrator and an owner or operator shall assure that each party to the
				contract is obligated by the contract to comply with all the requirements
				applicable to each party respectively, as set forth in 310 CMR
				30.910(1).
2. Prior to executing
				any contract with a Claims Administrator, the owner or operator shall furnish a
				copy of the contract to the Department. No contract between a Claims
				Administrator and an owner or operator shall be signed by either of them
				without the prior written approval of the Department. The Department may
				withhold such approval if the Department is not persuaded that (1) the Claims
				Administrator is a person who can and will properly carry out the
				responsibilities a Claims Administrator has pursuant to 310 CMR 30.000, or (2)
				the terms and wording of the contract between the Claims Administrator and the
				owner or operator are sufficient to protect the Department's interests. The
				Department shall not unreasonably withhold or delay such approval.
3. The Department shall not be a party to the
				contract between the Claims Administrator and the owner or operator.
4. Cancellation of any contract between a
				Claims Administrator and an owner or operator shall be effective only upon
				written notice and only after the expiration of a least 30 days after the date
				of receipt by the Department of such written notice, sent to the Department by
				certified mail.
5. Except as
				provided in Section 9 of the trust agreement, the wording of which is specified
				in 310 CMR 30.910(3)(a), the Claims Administrator shall not receive, and shall
				not be eligible to receive, directly or indirectly, any money in any letter of
				credit or standby trust fund established pursuant to
				310
				CMR 30.900 and for each he is Claims
				Administrator.
6. Nothing in
				310
				CMR 30.900 shall be construed to preclude the
				Trustee of any trust fund from also being the Contract Administrator for that
				trust fund.
7. The Department shall
				have the right to direct the Claims Administrator to refuse to give
				instructions to pay any claim, and the Department and the Claims Administrator
				shall each have the right to obtain reimbursement of any claim already paid in
				whole or in part, if, in the opinion of the Department the claim is fraudulent,
				inflated, or otherwise unlawful or unjustified.