Nebraska Administrative Code › Topic - ENVIRONMENT AND ENERGY › Title 122 - NEBRASKA DEPARTMENT OF ENVIRONMENTAL QUALITY › Appendix I - Environmental Protection Trust Agreement

Current through June 17, 2024
A trust agreement for a trust fund as specified in Title 122, Ch.13,
§004
, must be worded as follows, except that
	 instructions in brackets are to be replaced with the relevant information and
	 the brackets deleted:
Trust Agreement
This
Trust Agreement
, the "Agreement", entered
	 into as of {date} by and between {name of the owner or operator}, {insert
	 address} {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 Nebraska Department of Environmental Quality, "NDEQ", an
	 agency of the State of Nebraska, has established Title 122 (Nebraska
	 Administrative Code), Chapter 13, Financial Assurance, applicable to the
	 Grantor, requiring that an owner or operator of a Class I or III injection well
	 shall provide assurance that funds will be available when needed for
	 environmental protection measures (as specified in Title 122, Ch.13,
	 §
001.01
) of the injection well(s),
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.
(c) Facility or activity means any Class I or III "underground
	 injection well" or any other facility or activity that is subject to control
	 under the Underground Injection Control Program of NDEQ.
Section 2.
Identification of Facilities and Cost
	 Estimates.
This Agreement pertains to the facilities and cost
	 estimates for environmental protection measures as defined in Title 122, Ch.13,
	 §
001.01
, which are identified on attached
	 Schedule A. {on Schedule A, for each Class I or III well, list the
	 Identification Number and the current cost estimates for environmental
	 protection measures, or portions thereof, for which financial assurance is
	 demonstrated by this Agreement.}
Section 3.
Establishment of Fund.
The Grantor
	 and the Trustee hereby establish a trust fund, the "Fund", for the benefit of
	 NDEQ. 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 consisting
	 of the property, which is acceptable to the Trustee, described in Schedule B
	 attached hereto. Such property 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
	 NEVERTHELESS, 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, and payments necessary to discharge any
	 liabilities of the Grantor established by NDEQ.
Section 4.
Payment for Environmental Protection
	 Measures.
The Trustee shall make payments from the Fund as the
	 NDEQ Director shall direct, in writing, to provide for the payment of costs of
	 environmental protection measures of the injection wells covered by this
	 Agreement. The Trustee shall reimburse the Grantor or other persons as
	 specified by the NDEQ Director from the Fund for environmental protection
	 measures in such amounts as the NDEQ Director shall direct in writing. In
	 addition, the Trustee shall refund to the Grantor such amounts as the NDEQ
	 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 or 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 its
	 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:
(a) 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 U.S.C.
	 §
									80a-2.(a) shall not be acquired or
	 held, unless they are securities or other obligations of the Federal of the
	 State government;
(b) 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
(c) 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 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 shares in its
	 discretion.
Section 8.
Express Powers of the 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 commission 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 by the
	 fund.
Section 10.
Annual Valuation:
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 Director of NDEQ 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 NDEQ Director 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 for the Grantor,
	 with respect to any question arising as to the construction of this Agreement
	 of any action to be taken hereunder. The Trustee shall be fully protected, to
	 the extent permitted by law, in acting upon the advise 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 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 property
	 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 NDEQ
	 Director, and the present Trustee by certified mail, return receipt requested,
	 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 14.
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 Exhibit A or
	 such other designees as the Grantor may designate by amendment to Exhibit A.
	 The Trustee shall be fully protected in acting without inquiry in accordance
	 with the Grantor's orders, requests, or instructions. All orders, requests, and
	 instructions by the NDEQ Director to the Trustee shall be in writing, signed by
	 the NDEQ Director, or his designee, and the Trustee shall act and 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 NDEQ 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 NDEQ, except as provided
	 herein.
Section 15.
Notice of Nonpayment.
The Trustee
	 shall notify the Grantor and the NDEQ Director by certified mail, return
	 receipt requested, within 10 days following the expiration of the 30-day period
	 after the anniversary of the establishment of the Trust, if no payment is
	 received by the Grantor during that period. After the pay-in period is
	 completed, the Trustee shall not be required to send a notice of
	 nonpayment.
Section 16.
Amendment of Agreement.
This
	 Agreement may be amended by an instrument in writing executed by the Grantor,
	 the Trustee, and the NDEQ Director, or by the Trustee and the NDEQ Director 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 NDEQ Director, or
	 by the Trustee and the NDEQ Director 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 18.
Immunity and Indemnification.
The
	 trustee shall not incur personnel liability of any nature in connection with
	 any act or omission, made in good faith, in the administration of the Trust, or
	 in carrying out any directions by the Grantor or the NDEQ Director 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 19.
Choice of Law.
This Agreement shall
	 be administered, construed, and enforced according to the laws of the State of
	 Nebraska.
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 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
	 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 Title 122, Nebraska Administrative Code, Appendix I, as
	 such regulations were constituted on the date first above written.
{Signature of Grantor}
{Title}
Attested
{Seal}
___________________________________
{Signature of Trustee}
{Title}
Attested
{Seal}
___________________________________
{Title}
State of Nebraska)
) ss.
County of___________)
On this_____day of_____________, 20___before me, a Notary Public in and
	 for said County, personally
	 came_________________________________,_____________________(Title) of
	 ___________________________(Corporation) to me personally known to be the
	 identical person whose name is affixed to the foregoing instrument as such
	 officer and acknowledged the execution thereof to be his voluntary act and deed
	 as such officer and the voluntary act and deed of said corporation.
Witness my hand and Notarial Seal the last date aforesaid.
___________________________________________
Notary Public
My seal expires_______________________________________________________
	 _________