Ohio Administrative Code › Title 3745 - Ohio Environmental Protection Agency › Chapter 3745-503 - Financial Assurance › Section 3745-503-20 - Wording of financial assurance instruments

Current through all regulations passed and filed through July 1, 2024
(A)
(1)
									 A trust
			 agreement for a trust fund as specified in paragraph (F) of rule
			 3745-503-05
			 of the Administrative Code, must be worded as follows on forms prescribed by
			 the director, 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
				[state] [corporation, partnership, association, proprietorship], the "grantor,"
				and [name of corporate trustee], ["incorporated in the state of __________ " or
				"a national bank"], the "trustee."
Whereas, the Ohio Environmental
				Protection Agency, ("Ohio EPA"), has established certain rules applicable to
				the grantor, requiring that the owner or operator of a facility or a scrap tire
				transporter provide assurance that funds will be available when needed for
				closure, post-closure care, or corrective actions at the facility, or for scrap
				tire transporter closure.
Whereas, the grantor has elected to
				establish a trust to provide all or part of such financial assurance for the
				facilities identified herein.
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)
										 The term "director" means the director of
			 environmental protection or a representative delegated by the director to act
			 on the director's behalf.
Section 2. Identification of facilities
				and cost estimates. This agreement pertains to a solid waste facility or a
				scrap tire transporter and cost estimates identified on attached schedule A [on
				schedule A, for each facility and scrap tire transporter list the name,
				address, and the current closure, post-closure care, scrap tire transporter
				closure, or corrective actions cost estimates, 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 the Ohio EPA. 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 will 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, any payments necessary
				to discharge any liabilities of the grantor established by the Ohio EPA.
Section 4. Payment for closure and
				post-closure care, scrap tire transporter closure, and corrective actions. The
				trustee will make such payments from the fund as the director will direct, in
				writing, to provide for the payment of the costs of closure, post-closure care,
				or corrective actions at the facility or scrap tire transporter closure covered
				by this agreement. The trustee will reimburse the grantor or other persons as
				specified by the director from the fund for closure, post-closure care, scrap
				tire transporter closure, or corrective actions expenditures in such amounts as
				the director will direct, in writing. In addition, the trustee will refund to
				the grantor such amounts as the director specifies in writing. Upon refund,
				such funds will no longer constitute part of the fund as defined herein.
Section 5. Payments comprising the
				fund. Payments made to the trustee for the fund will consist of cash or
				securities acceptable to the trustee.
Section 6. Trustee management. The
				trustee will 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 periodically, subject,
				however, to the provisions of this section. In investing, reinvesting,
				exchanging, selling, and managing the fund, the trustee will discharge the
				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 scrap tire transporter, or any of their affiliates as defined in
			 the Investment Company Act of 1940, as amended, 15 U.S.C. section 80a -
			 2(a),
			 will not be acquired or held, unless they are securities or other obligations
			 of the federal or a 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;
(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
			 periodically 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;
(b)
												 To purchase
			 shares in any investment company registered under the Investment Company Act of
			 1940,
			 15 U.S.C. sections
			 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 discretion 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 will 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 will 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;
(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 will be paid from the
				fund. All other expenses, proper charges, and disbursements, 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 will be paid from the fund. Expenses, proper
				charges, and disbursements include fees for legal services, rendered to the
				trustee and the compensation of the trustee to the extent the grantor fails to
				compensate the trustee pursuant to section 12.
Section 10. Annual valuation. The
				trustee will annually, not later than thirty days prior to the anniversary date
				of the establishment of the fund, furnish to the grantor and to the director a
				statement confirming the value of the trust. Any securities in the fund will be
				valued at market value as of no more than sixty days prior to the anniversary
				date of establishment of the fund. The failure of the grantor to object in
				writing to the trustee not later than ninety days after the statement has been
				furnished to the grantor and the director will 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 periodically 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 will be fully
				protected, to the extent permitted by law, in acting upon the advice of
				counsel.
Section 12. Trustee compensation. The
				trustee will be entitled to reasonable compensation from the grantor for the
				trustee's services as agreed upon in writing periodically 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 will have the same powers and duties as those conferred upon the
				trustee hereunder. Upon the successor trustee's acceptance of the appointment,
				and upon the director's written approval, the trustee will 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 director, and
				the present trustee by certified mail or any other form of mail accompanied by
				a receipt not later than ten days before such change becomes effective. The
				director's written approval must be given prior to the ten days notice provided
				by the successor trustee. Any expenses incurred by the trustee as a result of
				any of the acts contemplated by this section will be paid as provided in
				section 9.
Section 14. Instructions to the
				trustee. All orders, requests, and instructions by the grantor to the trustee
				will 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 will 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 to the trustee will be in writing,
				signed by the director, and the trustee will act and will be fully protected in
				acting in accordance with such orders, requests, and instructions. The trustee
				will 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 will have no duty to act in the absence of such orders,
				requests, and instructions from the grantor or the director except as provided
				for herein.
Section 15. Notice of nonpayment. The
				trustee will notify the grantor and the director by certified mail or any other
				form of mail accompanied by a receipt not later than ten days after the
				expiration of the thirty-day period following the anniversary of the
				establishment of the trust, if no payment is received from the grantor during
				the period. After the pay-in period is completed, the trustee is not 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 director, or by the trustee and the 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 will be irrevocable and will continue until
				termination at the written agreement of the grantor, the trustee, and the
				director, or by the trustee and the director if the grantor ceases to exist.
				Upon termination of the trust, all remaining trust property, less final trust
				administration expenses, will be delivered to the grantor, unless the trust is
				a standby trust fund created in accordance with a surety bond guaranteeing
				payment into a trust fund, a surety bond guaranteeing performance, or a letter
				of credit, in which case all remaining trust property, less final trust
				administration expenses, will be delivered to the provider of the financial
				assurance.
Section 18. Immunity and
				indemnification. The trustee will 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
				issued in accordance with this agreement. The trustee will 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 will be administered, construed, and enforced according to the laws
				of the state of Ohio.
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 will 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 rules adopted under
				Chapter 3734. of the Revised Code concerning financial assurance for solid
				waste facilities or a scrap tire transporter as such rules were constituted on
				the date first above written.
[Signature of grantor]
[Title]
Attest:
[Title]
[Seal]
[Signature of trustee]
Attest:
[Title]
[Seal]"