South Carolina Code of Regulations › Chapter 61 - DEPARTMENT OF HEALTH AND ENVIRONMENTAL CONTROL › Subchapter 61-79 - Hazardous Waste Management Regulations › Part 61-79.261 - IDENTIFICATION AND LISTING OF HAZARDOUS WASTE › Subpart H - FINANCIAL REQUIREMENTS FOR MANAGEMENT OF EXCLUDED HAZARDOUS SECONDARY MATERIALS › Section 61-79.261.H.151 - Wording of the instruments › Appendix A-1

Current through Register Vol. 48, No. 6, June 28, 2024
SOUTH CAROLINA DEPARTMENT OF HEALTH AND ENVIRONMENTAL
						CONTROL BUREAU OF LAND AND WASTE MANAGEMENT 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 South Carolina Department of Health and
						Environmental Control, hereafter referred to as the "Department," an agency of
						South Carolina, has established certain regulations applicable to the Grantor,
						requiring that an owner or operator of a facility regulated under R.61-79.264
						or 265, or satisfying the conditions of the exclusion under section
						261.4(a)(24) shall provide assurance that funds will be available if needed for
						care of the facility under subpart G of R.61-79.264 or 265, as
						applicable,
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.
Section 2. Identification of Facilities and Cost
						Estimates. This Agreement pertains to the facilities and cost estimates
						identified on attached Schedule A [on Schedule A, for each facility list the
						EPA Identification Number (if available), name, address, and the current 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
						Department in the event that the hazardous secondary materials of the Grantor
						no longer meet the conditions of the exclusion under section 261.4(a)(24). 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, 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 Department.
Section 4. Payments from the Fund. The Trustee shall make
						payments from the Fund as the Department shall direct, in writing, to provide
						for the payment of the costs of the performance of activities required under
						subpart G of R.61-79.264 or 265 for the facilities covered by this Agreement.
						The Trustee shall reimburse the Grantor or other persons as specified by the
						Department from the Fund for expenditures for such activities in such amounts
						as the beneficiary shall direct in writing. In addition, the Trustee shall
						refund to the Grantor such amounts as the Department 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 his 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 or 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
						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. Annual Valuation. The Trustee shall annually,
						at least thirty (30) days prior to the anniversary date of establishment of the
						Fund, furnish to the Grantor and to the Department a statement confirming the
						value of the Trust. Any securities in the Fund shall be valued at market value
						as of no more than sixty (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 ninety (90) days after the statement has been furnished to
						the Grantor and the Department 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 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 shall be fully protected, to the extent
						permitted by law, in acting upon the advice 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 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 Department,
						and the present Trustee by certified mail ten (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, and instructions. All orders, requests, and
						instructions by the Department to the Trustee shall be in writing, signed by
						the Department, or their designees, 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 Department 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
						Department, except as provided for herein.
Section 15. Amendment of Agreement. This Agreement may be
						amended by an instrument in writing executed by the Grantor, the Trustee, and
						the Department, or by the Trustee and the Department if the Grantor ceases to
						exist.
Section 16. 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 Department, or by the
						Trustee and the Department, 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 17. 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 Department 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 18. Choice of Law. This Agreement shall be
						administered, construed, and enforced according to the laws of South
						Carolina
Section 19. 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 section 261.151 Appendix A-1 as such regulations were
						constituted on the date set forth above.
[Signature of Grantor]
[Title]
Attest:
[Title]
[Seal]
[Signature of Trustee]
Attest:
[Title]
[Seal]