Mississippi Administrative Code › Title 11 - Mississippi Department of Environmental Quality › Part 5 - Underground Storage Tank Regulations › Chapter 2 - Mississippi Commission on Environmental Quality Underground Storage Tanks Regulations Technical Standards and Corrective Action Requirements for Owners and Operators of Underground Storage Tanks (UST) (Adopted March 22, 1989; Amended August 25, 2011, Last Amended August 23, 2018) › Rule 11-5-2.8 - Financial Responsibility › Section 11-5-2.8-280.103 - Stand by trust fund

Current through June 25, 2024
(a) An owner or
				  operator using any one of the mechanisms authorized by §§ 280.96,
				  280.98, or 280.99 must establish a standby trust fund when the mechanism is
				  acquired. The trustee of the standby trust fund must be an entity that has the
				  authority to act as a trustee and whose trust operations are regulated and
				  examined by a Federal agency or an agency of the state in which the fund is
				  established.
(b)
(1) The standby trust agreement, or trust
				  agreement, must be worded as follows, except that instructions in brackets are
				  to be replaced with the relevant information and the brackets deleted:
Trust Agreement
Trust agreement, the "Agreement," entered into as of
					 [date] by and between [name of the owner or operator], a [name of state]
					 [insert "corporation," "partnership," "association," or "proprietorship"], the
					 "Grantor," and [name of corporate trustee], [insert "Incorporated in the state
					 of ___" or "a national bank"], the "Trustee."
Whereas, the United States Environmental Protection
					 Agency, "EPA," an agency of the United States Government, has established
					 certain regulations applicable to the Grantor, requiring that an owner or
					 operator of an underground storage tank shall provide assurance that funds will
					 be available when needed for corrective action and third-party compensation for
					 bodily injury and property damage caused by sudden and nonsudden accidental
					 releases arising from the operation of the underground storage tank. The
					 attached Schedule A lists the number of tanks at each facility and the name(s)
					 and address(es) of the facility(ies) where the tanks are located that are
					 covered by the standpoint trust agreement.
[Whereas, the Grantor has elected to establish [insert
					 either "a guarantee," "surety bond," or "letter of credit"] to provide all or
					 part of such financial assurance for the underground storage tanks identified
					 herein and is required to establish a standby trust fund able to accept
					 payments from the instrument (This paragraph is only applicable to the standby
					 trust agreement.)];
Whereas, the Grantor, acting through its duly authorized
					 officers, has selected the Trustee to be the trustee under this agreement, and
					 the Trustee is willing to act as trustee;
Now, therefore, the Grantor and the Trustee agree as
					 follows:
Section 1.
Definitions
As used in this Agreement:
(a) The term "Grantor" means the owner or
				  operator who enters into this Agreement and any successors or assigns of the
				  Grantor.
(b) The term "Trustee"
				  means the Trustee who enters into this Agreement and any successor
				  Trustee.
Section 2.
Identification of the Financial
					 Assurance Mechanism
This Agreement pertains to the [identify the financial
					 assurance mechanism, either a guarantee, surety bond, or letter of credit, from
					 which the standby trust fund is established to receive payments (This paragraph
					 is only applicable to the standby trust agreement.)].
Section 3.
Establishment of Fund
The Grantor and the Trustee hereby establish a trust fund,
					 the "Fund," for the benefit of [implementing agency]. The Grantor and the
					 Trustee intend that no third party have access to the Fund except as herein
					 provided. [The Fund is established initially as a standby to receive payments
					 and shall not consist of any property.] Payments made by the provider of
					 financial assurance pursuant to [the Director of the implementing agency's]
					 instruction are transferred to the Trustee and are 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 shall not
					 be responsible nor shall it undertake any responsibility for the amount or
					 adequacy of, nor any duty to collect from the Grantor as provider of financial
					 assurance, any payments necessary to discharge any liability of the Grantor
					 established by [the state implementing agency]
Section 4.
Payment for ["Corrective Action" and/or
					 Third-Party Liability Claims"]
The Trustee shall make payments from the Fund as [the
					 Director of the implementing agency] shall direct, in writing, to provide for
					 the payment of the costs of [insert: "taking corrective action" and/or
					 compensating third parties for bodily injury and property damage caused by"
					 either "sudden accidental releases" or "nonsudden accidental releases" or
					 "accidental releases"] arising from operating the tanks covered by the
					 financial assurance mechanism identified in this Agreement.
The Fund may not be drawn upon to cover any of the
					 following:
(a) Any obligation of
				  [insert owner or operator] under a workers' compensation, disability benefits,
				  or unemployment compensation law or other similar law;
(b) Bodily injury to an employee of [insert
				  owner or operator] arising from, and in the course of employment by [insert
				  owner or operator];
(c) Bodily
				  injury or property damage arising from the ownership, maintenance, use, or
				  entrustment to others of any aircraft, motor vehicle, or watercraft;
(d) Property damage to any property owned,
				  rented, loaned to, in the care, custody, or control of, or occupied by [insert
				  owner or operator] that is not the direct result of a release from a petroleum
				  underground storage tank;
(e)
				  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 other than a contract or agreement entered into to meet the
				  requirements of
				  40 CFR
				  280.93.
The Trustee shall reimburse the Grantor, or other persons
					 as specified by [the Director], from the Fund for corrective action
					 expenditures and/or third-party liability claims in such amounts as [the
					 Director] shall direct in writing. In addition, the Trustee shall refund to the
					 Grantor such amounts as [the Director] specifies in writing. Upon refund, such
					 funds shall no longer constitute part of the Fund as defined herein.
Section 5.
Payments Comprising the Fund
Payments made to the Trustee for the Fund shall consist of
					 cash and securities acceptable to the Trustee.
Section 6.
Trustee Management
The Trustee shall invest and reinvest the principal and
					 income of the Fund and keep the Fund invested as a single fund, without
					 distinction between 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 his duties with respect to the trust fund solely in the
					 interest of the beneficiaries 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 tanks, or any of their
				  affiliates as defined in the Investment Company Act of 1940, as amended,
				  15 U.S.C.
				  80a-2(a), shall 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 U.S.C.
				  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 depository even though, when so deposited,
				  such securities may be merged and held in bulk in the name of the nominee of
				  such depository 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 of 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 questions 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 shall 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 writing sent to the Grantor 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, and instructions by the Grantor to
					 the Trustee shall be in writing, signed by such persons as are designated in
					 the attached Schedule B or such other designees as the Grantor may designate by
					 amendment to Schedule B. 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 Director of the implementing
					 agency] to the Trustee shall be in writing, signed by [the Director], and the
					 Trustee shall act and shall be fully protected in acting in accordance with
					 such 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 director] 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 Director], except as provided for
					 herein.
Section 14.
Amendment of Agreement
This Agreement may be amended by an instrument in writing
					 executed by the Grantor and the Trustee, or by the Trustee and [the Director of
					 the implementing agency] if the Grantor ceases to exist.
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 direction of the Grantor and the
					 Trustee, or by the Trustee and [the Director of the implementing agency], 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.
Section 16.
Immunity and Indemnification
The Trustee shall 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 Director of the implementing agency] issued in accordance with this
					 Agreement. The Trustee shall be indemnified and saved harmless by the Grantor,
					 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 [insert name of state], or the
					 Comptroller of the Currency in the case of National Association banks.
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 shall 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 (if applicable) 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
					 40 CFR
					 280.103(b)(1) as such
					 regulations were constituted on the date written above.
[Signature of Grantor]
[Name of the Grantor]
[Title]
Attest:
[Signature of Trustee]
[Name of the Trustee]
[Title]
[Seal]
[Signature of Witness]
[Name of the Witness]
[Title]
[Seal]