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 L-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
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 must demonstrate financial responsibility
						for bodily injury and property damage to third parties caused by sudden
						accidental and/or nonsudden accidental occurrences arising from operations of
						the facility or group of facilities.
WHEREAS, the Grantor has elected to establish a trust to
						assure all or part of such financial responsibility 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. This agreement
						pertains to the facilities identified on attached schedule A [on schedule A,
						for each facility list the EPA Identification Number (if any issued), name, and
						address of the facility(ies) and the amount of liability coverage, or portions
						thereof, if more than one instrument affords combined coverage as demonstrated
						by this Agreement].
Section 3. Establishment of Fund. The Grantor and the
						Trustee hereby establish a trust fund, hereinafter the "Fund," for the benefit
						of any and all third parties injured or damaged by [sudden and/or nonsudden]
						accidental occurrences arising from operation of the facility(ies) covered by
						this guarantee, in the amounts of ____-[up to $1 million] per occurrence and
						[up to $2 million] annual aggregate for sudden accidental occurrences and ____
						[up to $3 million] per occurrence and ____-[up to $6 million] annual aggregate
						for nonsudden occurrences, except that the Fund is not established for the
						benefit of third parties for the following:
(a) Bodily injury or property damage for which [insert
						Grantor] is obligated to pay damages by reason of the assumption of liability
						in a contract or agreement. This exclusion does not apply to liability for
						damages that [insert Grantor] would be obligated to pay in the absence of the
						contract or agreement.
(b) Any obligation of [insert Grantor] under a workers'
						compensation, disability benefits, or unemployment compensation law or any
						similar law.
(c) Bodily injury to:
(1) An employee of [insert Grantor] arising from, and in
						the course of, employment by [insert Grantor]; or
(2) The spouse, child, parent, brother, or sister of that
						employee as a consequence of, or arising from, and in the course of employment
						by [insert Grantor]. This exclusion applies:
(A) Whether [insert Grantor] may be liable as an employer
						or in any other capacity; and
(B) To any obligation to share damages with or repay
						another person who must pay damages because of the injury to persons identified
						in paragraphs (1) and (2).
(d) Bodily injury or property damage arising out of the
						ownership, maintenance, use, or entrustment to others of any aircraft, motor
						vehicle, or watercraft.
(e) Property damage to:
(1) Any property owned, rented, or occupied by [insert
						Grantor];
(2) Premises that are sold, given away, or abandoned by
						[insert Grantor] if the property damage arises out of any part of those
						premises;
(3) Property loaned to [insert Grantor];
(4) Personal property in the care, custody, or control of
						[insert Grantor];
(5) That particular part of real property on which
						[insert Grantor] or any contractors or subcontractors working directly or
						indirectly on behalf of [insert Grantor] are performing operations, if the
						property damage arises out of these operations.
In the event of combination with another mechanism for
						liability coverage, the Fund shall be considered [insert "primary" or "excess"]
						coverage.
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. Payment for Bodily Injury or Property Damage.
						The Trustee shall satisfy a third party liability claim by making payments from
						the Fund only upon receipt of one of the following documents;
(a) Certification from the Grantor and the third party
						claimant(s) that the liability claim should be paid. The certification must be
						worded as follows, except that instructions in brackets are to be replaced with
						the relevant information and the brackets deleted:
Certification of Valid Claim
The undersigned, as parties [insert Grantor] and [insert
						name and address of third party claimant(s)], hereby certify that the claim of
						bodily injury and/or property damage caused by a [sudden or nonsudden]
						accidental occurrence arising from operating [Grantor's] facility or group of
						facilities should be paid in the amount of $[insert amount].
[Signatures]
Grantor
[Signatures]
Claimant(s)
(b) A valid final court order establishing a judgment
						against the Grantor for bodily injury or property damage caused by sudden or
						nonsudden accidental occurrences arising from the operation of the Grantor's
						facility or group of facilities.
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, 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 circumstance 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 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 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. 81a-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 Valuations. 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 appropriate
						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 amendments 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
						the Department, except as provided for herein.
Section 15. Notice of Nonpayment. If a payment for bodily
						injury or property damage is made under Section 4 of this trust, the Trustee
						shall notify the Grantor of such payment and the amount(s) thereof within five
						(5) days. The Grantor shall, on or before the anniversary date of the
						establishment of the Fund following such notice, either make payments to the
						Trustee in amounts sufficient to cause the trust to return to its value
						immediately prior to the payment of claims under Section 4, or shall provide
						written proof to the Trustee that other financial assurance for liability
						coverage has been obtained equaling the amount necessary to return the trust to
						its value prior to the payment of claims. If the Grantor does not either make
						payments to the Trustee or provide the Trustee with such proof, the Trustee
						shall within 10 (ten) working days after the anniversary date of the
						establishment of the Fund provide a written notice of nonpayment to the
						Department.
Section 16. Amendment of Agreement. This Agreement may be
						amended by an instrument in writing executed by the Grantor, the Trustee, and
						the appropriate Department, or by the Trustee and the appropriate Department 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 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.
The Department will agree to termination of the Trust
						when the owner or operator substitutes alternate financial assurance as
						specified in this section.
Section 18. 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 19. Choice of Law. This Agreement shall be
						administered, construed, and enforced according to the laws of South
						Carolina.
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 set forth above. The
						parties below certify that the wording of this Agreement is identical to the
						wording specified in R.61-79.261.151 Appendix L as such regulations were
						constituted on the date set forth above.
[Signature of Grantor]
[Title]
Attest:
[Title]
[Seal]
[Signature of Trustee]
Attest:
[Title]
[Seal]