N.Y. Comp. Codes R. & Regs. Tit. 6 §§ 383-6.12

Current through Register Vol. 46, No. 45, November 2, 2024

Section 383-6.12 - Language of the methods and instruments

(a) A trust agreement, as specified by Title 6 of the Official Compilation of Codes, Rules and Regulations of the State of New York ("NYCRR") sections 383-6.4 and 383-6.5(m)(1) of this Subpart, must be worded as follows, except that instructions in brackets are to be replaced with the relevant information and the brackets deleted and, where applicable, sections renumbered for continuity:

TRUST AGREEMENT

TRUST AGREEMENT, the "Agreement," entered into as of [date] by and between [name of the permittee], the "Settlor," and [name of trustee], [insert, "incorporated in the State of___" or "a national bank"], the "Trustee."

WHEREAS, the New York State Department of Environmental Conservation (hereinafter referred to as "NYSDEC") has established certain regulations applicable to the Settlor which require that funds be available when needed for implementation of the closure plan, implementation of the post-closure plan, implementation of the institutional control plan, remediation of failures, and coverage of personal injury and property damage to third parties caused by operation of the land disposal facility; and require that the permittee of a land disposal facility or group of land disposal facilities must provide financial assurance for such costs.

WHEREAS, the Settlor is required by such regulations or has elected pursuant to such regulations to establish a trust to assure all or part of such financial assurance for the land disposal facilities identified herein, and

WHEREAS, the Settlor, 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, and

NOW, THEREFORE, the Settlor and the Trustee agree as follows:

Section 1.Definitions. As used in this Agreement:

(a) The term "Settlor" means the permittee who enters into this Agreement and any successors or assigns of the Settlor.

(b) The term "Trustee" means the Trustee who enters into this Agreement and any successor Trustee.

(c) The term "Commissioner" means the Commissioner of the New York State Department of Environmental Conservation, or a duly appointed designee.

Section 2.Identification of Facilities. This Agreement pertains to the land disposal facility identified on attached schedule A [on schedule A, for each land disposal facility list the name and address of the land disposal facility and the costs, as established or approved by the Commissioner, for which financial assurance is demonstrated by the Agreement]

Section 3.Establishment of Trust. The Settlor and the Trustee hereby establish a trust, hereinafter the "Trust," [for the closure, post-closure, and institutional control trust or for a trust being used to provide alternate financial assurance for the closure, post-closure, and institutional control trust insert the following:

"for coverage of the costs of implementing the closure plan, implementing the post-closure plan and/or implementing the institutional control plan, for the benefit of NYSDEC;"]

[for the remedial action/third-party compensation trust (operation, closure, and post-closure periods) or for a trust being used to provide alternate financial assurance for the remedial action/third-party compensation trust (operation, closure, and post-closure periods), insert the following:

"for coverage of the costs of remediation of failures during the period of operation and the closure and post-closure periods, compensation to third parties for personal injury and property damage caused by the operation of the land disposal facility, and the costs or for the benefit of NYSDEC and any and all third parties injured or damaged by accidental occurrences caused by the operation of the land disposal facility covered by this Trust"]

[for the remedial action/third-party compensation trust (institutional control period) or for a trust being used to provide alternate financial assurance to the remedial action/third-party compensation trust (institutional control period), insert the following:

"for coverage of the costs of remediation of failures and the costs of compensation of third parties for personal injury and property damage from accidental occurrences caused by the operation of the land disposal facility during the institutional control period, for the benefit of NYSDEC and any and all third parties injured or damaged by accidental occurrences caused by operation of the land disposal facility covered by this Trust."]

[for the remedial action/third-party compensation trust (operation, closure, and post-closure periods), and the remedial action/third-party compensation trust (institutional control period) or for a trust or trusts being used to provide alternate financial assurance for the remedial action/third-party compensation trust (operation, closure, and post-closure periods), and/or the remedial action/third-party compensation trust (institutional control period), also insert the following:

"except that the Trust is not established for the benefit of third parties for the following:

(a) Personal injury or property damage for which [insert Settlor] 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 Settlor] would be obligated to pay in the absence of the contract or agreement.

(b) Any obligation of [insert Settlor] under a workers' compensation, disability benefits, or unemployment compensation law or any similar law.

(c) Personal injury to an employee of [insert Settlor] arising from, and in the course of, employment by [insert Settlor]. This exclusion applies (1) Whether [insert Settlor] may be liable as an employer or in any other capacity; and (2) To any obligation to share damages with or repay another person who must pay damages because of the injury to persons identified in paragraph (1).

(d) Personal injury or property damage arising out of the ownership, maintenance, use, or entrustment to other of any aircraft, motor vehicle or watercraft.

(e) Property damage to personal property in the care, custody or control of [insert Settlor]."]

The Trust is established initially as consisting of the property, which is acceptable to the Trustee, described in Schedule B annexed hereto. Such property and any other property subsequently transferred to the Trustee is referred to as the Trust, together with all earnings and profits thereon, less any payments of distributions made by the Trustee pursuant to this Agreement. The Trust 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 Settlor, any payments necessary to discharge any liabilities of the Settlor established by NYSDEC.

[for the closure, post-closure, and institutional control trust or for a trust being used to provide alternate financial assurance for the closure, post-closure, and institutional control trust, insert the following:

Section 4.Payment for Implementation of the Closure Plan, Post-Closure Plan and Institutional Control Plan.The Trustee shall make payment from the Trust as the Commissioner shall direct. in writing, to provide for the payment of the costs of implementing the closure plan, post-closure plan, and/or the institutional control plan for the land disposal facility covered by this Agreement. The Trustee shall reimburse the Settlor or other persons as directed by the Commissioner, in writing, from the Trust for the expenditures of such covered activities. In addition, the Trustee shall refund to the Settlors such amounts as the Commissioner directs in writing. Upon refund, such funds shall no longer constitute part of the Trust as defined herein.]

[for the remedial action/third-party compensation trust (operation, closure, and post-closure periods), and the remedial action/third-party compensation trust (institutional control periods), or for a trust or trusts being used to provide alternate financial assurance for the remedial action/third-party compensation trust (operation, closure, and post-closure periods), and the remedial action/third-party compensation trust (institutional control period), insert Sections 5 and 6 as follows:

Section 5.Payments for Remediation of Failures During the Operation, Closure, Post- Closure, and Institutional Control Periods. The Trustee shall make payment from the Trust as the NYSDEC shall direct, in writing, to provide for the payment of the costs of remediation of failures ordered by the NYSDEC or by a court for the land disposal facility covered by this Agreement. The Trustee shall reimburse the Settlor or other persons as directed by the NYSDEC from the Trust for the expenditures of such covered activities. In additions, the Trustee shall refund to the Settlors such amounts as the NYSDEC directs in writing. Upon refund, such funds shall no longer constitute part of the Trust as defined herein.

Section 6.Payment for Personal Injury and/or Property Damage During the Operation, Closure, Post-Closure, and Institutional Control Periods. The Trustee shall make payment to the permittee from the Trust for the cost of a third party compensation release, settlement or judgment only upon receipt of one of the following documents:

(a) A copy of a fully executed release entered into by the Settlor and the third party claiming compensation for personal injury and/or property damage.

(b) Certification by the Settlor and third party that a settlement agreement has been executed. 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 SETTLEMENT AGREEMENT

The undersigned, as parties [insert Settlor] and [insert name and address of third party claimant(s)], hereby certify that the claim of personal injury and/or property damage resulting from an accidental occurrence caused by operation of [Settlor's] land disposal facility has been settled by settlement agreement executed by (Settlor) and whereby (third party) has agreed to accept ($ __) as full and complete satisfaction of such claim and has agreed to settle all civil claims against the Settlor and releases the Settlor from any and all liability related to such claim, and (Settlor) and (third party) agree the amount of ($ __) shall be paid to (third party).

[Signatures].. [Signatures].............................................

Settlor.. Claimant(s).............................................

(c) A copy of a valid final judgment or order of a court establishing a judgment against the Settlor for personal injury and property damage resulting from an accidental occurrence caused by the operation of the Settlor's land disposal facility.

(d) A written order from the Commissioner or a court requiring the Settlor to accomplish specified remediation at the land disposal facility accompanied by proof of expenditure by the settlor.

Section 7.Payments Comprising the Trust. Payments made to the Trustee for the Trust shall consist of cash or securities acceptable to the Trustee.

Section 8.Trust Management. The Trustee shall invest and reinvest the principal and income, in accordance with general investment policies and guidelines which the Settlor 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 Trust, the Trustee shall discharge his duties with respect to the Trust 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 Settlor, or any other owner or operator of the land disposal facilities, or any of their affiliates as defined in the Investment Company Act of 1940, as amended, 15 U.S.C.A. 80a -2(a) (see section 383-6.13 of this Subpart), 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 Trust 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 9.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 Trust to any common, commingled, or collective trust created by the Trustee in which the Trust 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.A. 80a-1 et seq (see section 383-6.13 of this Subpart), 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 10.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 saleor 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 Trust 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 or 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 Trust;

(d) To deposit any cash in the Trust 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 contest, compromise or otherwise settle all claims in favor of or against the Trust; and

(f) To hold in its custody alternate financial methods or instruments established pursuant to 6 NYCRR section 383-6.5, and to deposit proceeds of such alternate financial methods or instruments into the Trust when directed by NYSDEC.

Section 11.Taxes and Expenses. All taxes of any kind that may be assessed or levied against or in respect of the Trust and all brokerage commissions incurred by the Trust shall be paid from the Trust. 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 Settlor, and all other proper charges and disbursements of the Trustee shall be paid from the Trust.

Section 12.Annual Valuation.

(a) The Trustee shall annually, no more than 30 days prior to the anniversary date of the establishment of the Trust, determine the value of the Trust.

(b) The Trustee shall annually, no more than 30 days prior to the anniversary date of establishment of the Trust, calculate the difference between the current value of the Trust and the total amount of financial assurance to be provided by the Settlor for the purpose for which the Trust was established.

(c) The Trustee shall annually, no more than 15 days prior to the anniversary date of establishment of the Trust, submit a written statement to the Settlor and to NYSDEC confirming the value of the Trust and the results of the calculation required by item (b) of this section.

(d) The Trustee shall annually, according to the procedures established in 6 NYCRR section 383-6.4(c), establish pay-in amounts, frequency of payments, pay-in period and communicate such amounts to the Settlor, and the Commissioner.

Section 13.Advice of Counsel. The Trustee may from time to time consult with counsel, who may be counsel to the Settlor 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 14.Trustee Compensation. The Trustee shall be entitled to reasonable compensation for services as agreed upon in writing from time to time with the Settlor.

Section 15.Successor Trustee. The Trustee may resign or the Settlor may replace the Trustee, but such resignation or replacement shall not be effective until the Settlor has notified NYSDEC of the name and address of the proposed successor trustee, NYSDEC has approved the appointment of the successor trustee, the Settlor 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 Trust. If for any reason the Settlor 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, subject to approval by NYSDEC, of a successor Trustee or for instruction. The successor Trustee shall specify the date on which he or she assumes administration of the Trust in writing sent to the Settlor, the NYSDEC, and the present Trustee by certified mail, return receipt requested, 10 days before such successor Trustee assumes administration of the Trust. 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 10.

Section 16.Instructions to the Trustee. All orders, requests, and instructions by the Settlor to the Trustee shall be in writing, signed by such persons as are designated in the attached Exhibit C or such other designees as the Settlor may designate by amendment to Exhibit C. [On Exhibit C specify the person or persons designated by the Settlor as the persons who may issue valid instructions to the Trustee by providing their full name and title and a copy of their signature.] The Trustee shall be fully protected in acting without inquiry in accordance with Settlor's orders, requests, and instructions. All orders, requests, and instructions by NYSDEC to the Trustee shall be in writing, signed by the Commissioner, or his or her 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 Settlor or NYSDEC hereunder has occurred. The Trustee shall have no duty to act in the absence of such orders, requests, and instructions from the Settlor or NYSDEC, except as provided for herein.

Section 17.

(a)Notice of Nonpayment. The Trustee shall notify the Settlor and the NYSDEC, by certified mail, return receipt requested, within 10 days following the expiration of the date(s) specified for payments by the Settlor into the Trust, if no payment is received from the Settlor during that period. After the pay-in period is completed, the Trustee shall not be required to send a notice of nonpayment, except as provided in item (b) of this section.

(b)Notice of Nonpayment of Reimbursement. If a payment is made under Section 4 or 5 of this Agreement, the Settlor shall, on or before the anniversary date of the establishment of the Trust following such payment, either make payments to the Trustee equal to the adjusted pay-in amounts as determined by the Trustee pursuant to 6 NYCRR section 383-6.4(c)(5), (6) or in amounts sufficient to cause the Trust to return to its value immediately prior to the payment of claims under Sections 4 or 5 above, or shall provide written proof to the Trustee that other financial assurance for the costs of activities for which payment was made has been obtained equaling the amount necessary to return the Trust to its value prior to the payment of claims. If the Settlor does not either make payments to the Trustee or provide the Trustee with such proof, the Trustee shall within 10 days after the expiration date specified for payments by the Settlor into the Trust provide by certified mail, return receipt requested, a written notice of nonpayment to the NYSDEC.

Section 18.Amendment of Agreement. This Agreement may be amended by an instrument in writing executed by the Settlor, the Trustee, and the Commissioner, or by the Trustee and the Commissioner if the Settlor ceases to exist.

Section 19.Irrevocability and Termination. Subject to the right of the parties to amend this Agreement as provided in Section 18, this Trust shall be irrevocable and shall continue until terminated at the written agreement of the Settlor, the Trustee, and the Commissioner, or by the Trustee and the Commissioner, if the Settlor ceases to exist.

[For the remedial action/third-party compensation trust fund (operation, closure, and post-closure periods), insert the following language: "Upon termination of the Trust, all remaining trust property, less trust administration expenses, shall be delivered to the Trustee of the remedial action/third-party compensation trust fund (institutional control period)."]

[Insert only if the Trust is being provided as alternate financial assurance under 6 NYCRR 383-6.5(m)(1): "The commissioner shall agree to termination of this Agreement when the permittee establishes alternate financial assurance as required by 6 NYCRR 383-6.5(k)." ]

Section 20.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 Settlor or the commissioner issued in accordance with this Agreement. The Trustee shall be indemnified and saved harmless by the Settlor or from the Trust, or both, from and against any personal liability to which the Trustee may be subjected by reason of any act or conduct in his or her official capacity, including all expenses reasonably incurred in his or her defense in the event the Settlor fails to provide such defense.

Section 21.Choice of Law. This Agreement shall be administered, construed, and enforced according to the laws of the State of New York.

Section 22.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 [for private corporations insert the following "and their corporate seals to be hereunto affixed"] and attested as of the date first written above.

The parties below certify that the Agreement conforms in all respects to the requirements of Title 6 of the Official Compilation of Codes, Rules and Regulations of the State of New York ("NYCRR") Part 383, as applicable, and the wording of this agreement is identical to the wording specified in 6 NYCRR Part 383 Subpart 383-6 as such regulations were constituted on the date first written above. It is agreed that any provision of the Agreement inconsistent with such regulations is hereby amended to eliminate such inconsistency.

[Signature of Settlor]

[Title]

Attest:

[Title]

[Seal]

[Signature of Trustee]

Attest:

[Title]

[Seal]

[The Trust Agreement must be accompanied by the appropriate certificates of acknowledgment by the Trustee and by the Settlor as specified in 383-6.4(b)(2) of this Subpart.]

(ACKNOWLEDGMENT BY TRUSTEE, IF A BANK)

STATE OF.. :...................................

: SS.: ...................................

COUNTY OF.. :...................................

On this day of__, 19_, before me personally came __ to me personally known who, by me duly sworn, did depose and say that (s)he resides in __that (s)he is the __ of __, the banking institution described in and which executed the within Trust Agreement; and the (s)he signed his/her name thereto by authority of such banking institution.

Notary Public.. :..........................................................................

(ACKNOWLEDGMENT BY TRUSTEE, IF A CORPORATION)

STATE OF.. :...................................

: SS.: ...................................

COUNTY OF.. :...................................

On this _ day of _, 19_, before me personally came, _ to me known, who, by me duly sworn, did depose and say that (s)he resides in _: that (s)he is __ of __, the corporation described in and which executed the within Trust Agreement; [for private corporations insert the following "that (s)he knew the seal of said corporation; that the seal affixed to said instrument was such corporate seal; that it was so affixed by order of the board of directors of said corporation,"] and that (s)he signed his/her name thereto by like order.

Notary Public..............................................................................

(ACKNOWLEDGMENT BY SETTLOR/PERMITTEE, UNLESS IT BE A CORPORATION)

STATE OF.. :...................................

: SS.: ...................................

COUNTY OF.. :...................................

On this day of __, 19_, before me personally came__ to me known to me to be the persons(s) described in and who executed the within Trustee Agreement and acknowledged that (s)he executed the same.

Notary Public

(ACKNOWLEDGMENT BY SETTLOR/PERMITTEE, IF A PUBLIC BENEFIT CORPORATION/CORPORATION)

STATE OF.. :...................................

: SS.: ...................................

COUNTY OF.. :...................................

On this __ day of __, 19, before me personally came __, to me personally known, who by me duly sworn, did depose and say that (s)he resides in __ that (s)he is __ of __, the (public benefit corporation/corporation) described in and which executed the within Trust Agreement; [if a private corporation insert the following "that (s)he knew the seal of said corporation; that the seal; that it was so affixed by order of the (member/board of directors) of said public benefit corporation/corporation,"] and that (s)he signed his/her name thereto by like order.

Notary Public........................................................

(b) A payment surety bond as specified in Title 6 of the Official Compilation of Codes, Rules and Regulations of the State of New York ("NYCRR") 383-6.5(m)(2) of this Subpart, must be worded as follows, except that instructions in brackets are to be replaced with the relevant information and the brackets deleted:

SURETY BOND

(PAYMENT)

Surety Bond Number: _________

Date surety bond executed: (If more than one Surety, identify surety bond number with respective Surety)

Effective date: ______

Principal: (Legal name and business address of permittee)

Type of organization: (individual, joint venture, partnership or corporation)

State of Incorporation: ______

Surety(ies) (Name(s) and business address(es) of Surety(ies))

Obligee: New York State Department of Environmental Conservation

Name, address, and penal sum amount(s) for the land disposal facility guaranteed by this surety bond (indicate land disposal facility and amounts separately) __

Total penal sum of surety bond: $__ (payable in good and lawful money of the United States of America)

WHEREAS, the Principal has agreed to provide financial assurances to the New York State Department of Environmental Conservation (hereinafter referred to as "NYSDEC"), guaranteeing that the sum of $__ will be available and made payable to the trustee(s) of the [insert "closure, post-closure, and institutional control trust," and/or "remedial action/third-party compensation trust (operation, closure, and post-closure periods)" and/or "remedial action/third-party compensation trust (institutional control period)"], (hereinafter "The Trustee" or "The Trustees") as directed by the Commissioner of NYSDEC (hereinafter the "Commissioner"), for the benefit of NYSDEC which guaranteed sums shall provide funding for [insert "implementing the land disposal facility closure plan," and/or "implementing the land disposal facility post-closure plan" and/or "implementing the land disposal facility institutional control plan" and/or "remediation of failures" and/or "third party compensation for personal injury and property damage caused by operation of the land disposal facility" or such other language upon written approval of the Commissioner, which limits or reduces the activities for which the surety bond guarantees funds] the land disposal facility identified above as provided for and as required for the obtaining and issuing of a permit to own or operate a land disposal facility;

WHEREAS, NYSDEC has required this surety bond guaranteeing prompt payment of monies due to the Commissioner of NYSDEC, as set forth under the terms and conditions of the above-referred permit, and in accordance with the New York State Environmental Conservation Law ("ECL"), Articles 27, 29, and Title 6 of the Official Compilation of Codes, Rules and Regulations of the State of New York ("NYCRR") Parts 382 and 383 et seq; and

WHEREAS, the surety(ies)/guarantor(s), herein has realized, analyzed, and weighed the risks attendant to such endeavor and guaranty and has taken such risks into account in determining the consideration for the assumption of this guaranty; and

WHEREAS, said Principal is required, under the ECL, Articles 27 and 29 and 6 NYCRR Part 383, to have a permit in order to own or operate the land disposal facility identified above; and

WHEREAS, said Principal is required to provide financial assurance for [insert "implementing the land disposal facility closure plan," and/or "implementing the land disposal facility post-closure plan" and/or "implementing the land disposal facility institutional control plan" and/or "remediation of failures" and/or "third party compensation for personal injury and property damage caused by operation of the land disposal facility: or such other language upon written approval of the Commissioner, which limits or reduces the activities for which the surety bond guarantees funds] as referred to above, as a condition of the permit(s);

NOW, THEREFORE, we, the Principal and Surety(ies) hereto are held and firmly bound to NYSDEC in the above full and just penal sum for the payment of which we bind ourselves, our heirs, executors, administrators, successors, and assigns jointly and severally; provided that, where the Surety(ies) are corporations acting as co-sureties, we, the Sureties, bind ourselves in such sum "jointly and severally" only for the purpose of allowing a joint action or actions against any or all of us, and for all other purposes each Surety binds itself, jointly and severally with the Principal, for the payment of such sum only as is set forth opposite the name of such Surety, but if no limit of liability is indicated, the limit of liability shall be the full amount of the penal sum;

PROVIDED, HOWEVER, that the condition of this surety bond is such that if the Principal shall promptly pay all monies due to NYSDEC to the Trustee(s) of the Trusts for which this surety bond is providing alternate financial assurance, as directed by the Commissioner in writing for [insert "implementing the land disposal facility closure plan," and/or "implementing the land disposal facility post-closure plan" and/or "implementing the land disposal facility institutional control plan" and/or "remediation of failures" and/or "third party compensation for personal injury and property damage caused by operation of the land disposal facility" or such other language upon written approval of the Commissioner, which limits or reduces the activities for which the surety bond guarantees funds], such sum being identified above for the land disposal facility, pursuant to the permit(s) and 6 NYCRR Part 383 et seq.

OR, if the Principal shall provide alternate financial methods or instruments, as specified in 6 NYCRR Part 383 Subpart 383-6, and obtain the Commissioner's written approval of such alternate financial methods or instruments, within 30 days after the date of the notice of cancellation from the Surety(ies) is received by the Principal, the Commissioner, and the Trustee(s) of the Trust(s) established pursuant to 6 NYCRR section 383-6.4(a) for which this surety bond is providing alternate financial assurance, as set forth below, then this obligation shall be null and void, otherwise it is to remain in full force and effect.

HOWEVER, to the extent that monies are paid by the Surety(ies) under the obligations of this surety bond to the Trustee(s), then the total penal sum of the surety bond shall be reduced by the amount so paid and the penal sum allocated to the land disposal facility for which the payment was made shall be reduced by the amount of the payment.

FURTHERMORE, the Surety(ies) shall become liable on this surety bond obligation only when the Principal has failed to fulfill the conditions set forth above, in 6 NYCRR Part 383 Subpart 383-6, and in the permit issued to the Principal by NYSDEC. Upon notification by the Commissioner that the Principal has failed to perform as guaranteed by this surety bond, the Surety(ies) shall pay funds to the Trustee(s) of the Trust(s) established pursuant to 6 NYCRR section 383-6.4(a) for which this surety bond is providing alternate financial assurance, as directed by the Commissioner in the amount guaranteed for the land disposal facility(ies) as set forth above.

The liability of the Surety(ies) shall not be discharged by any payment or succession of payments hereunder, unless and until such payment or payments shall amount in the aggregate to the penal sum of the surety bond, but in no event shall the obligation for the Surety(ies) hereunder exceed the amount of said penal sum.

The Surety(ies) may cancel the surety bond by sending notice of cancellation by certified mail, return receipt requested, not less than 90 days prior to the renewal date of the surety bond, to the Principal, the Trustee(s) of the Trusts for which this surety bond is providing alternate financial assurance and the Commissioner; provided, however, that the cancellation shall not occur during the 90 days beginning on the date of receipt of the notice of cancellation by the Principal, the Trustee(s) of the Trusts for which this surety bond is providing alternate financial assurance, and the Commissioner, as evidenced by the return receipts. Cancellation may not occur, however, without proof provided to NYSDEC by the permittee of alternate financial assurance methods or instruments in accordance with 6 NYCRR Part 383 Subparts 383-6.5(j) and (k). If the permittee fails to obtain an alternate financial assurance method or instrument acceptable to the NYSDEC in accordance with 6 NYCRR Part 383 Subparts 383-6.5(j) and (k), the surety must pay the penal sum of the bond to the Trustee(s) of the Trust(s) for which the bond is providing alternate coverage for deposit into such Trust(s), as directed by the Commissioner.

The Principal may terminate this surety bond by sending written notice to the Surety(ies); provided, however, that no such notice shall become effective until the permittee provides a copy to the Surety(ies) or written authorization for termination of the surety bond by the Commissioner from the Principal.

Principal and Surety(ies) hereby agree to adjust the penal sum of the surety bond yearly so that it guarantees the amount equal to the adjusted estimate of the costs [insert "for implementing the land disposal facility closure plan," and/or "implementing the land disposal facility post-closure plan" and/or "implementing the land disposal facility institutional control plan" and/or "remediation of failures" and/or "third party compensation for personal injury and property damage caused by operation of the land disposal facility" or such other language upon written approval of the Commissioner, which limits or reduces the activities for which the surety bond guarantees funds], provided that the penal sum does not increase by more than 20 percent in any one year, and no decrease in the penal sum takes place without the written permission of the Commissioner.

The parties signed below certify that the surety bond conforms in all respects to the requirements of 6 NYCRR Part 383 Subpart 383-6, as applicable, and the wording of this surety bond is identical to the wording specified in 6 NYCRR Part 383 as such regulations were constituted on the date shown immediately below. It is agreed that any provision of the surety bond inconsistent with such regulations is hereby amended to eliminate such inconsistency.

IN WITNESS WHEREOF, the Principal has hereunto set its hand [if Principal has a corporate seal add the words "and seal"] and the Surety(ies) has caused this Instrument to be signed by its __and its corporate seal to be hereunto affixed on this day __ of, 19 _.

Principal....................................

(If Corporation, add seal

and attestation)

By:...............................................

_______

Surety..............................................

Attest:

Secretary

Corporate Surety(ies)..............................................

State of Incorporation: ______..............................................

Liability limit: (for each land disposal facility, and in the aggregate)..............................................

$ ______ ..............................................

Surety Bond premium: $ ___..............................................

(ACKNOWLEDGMENT BY PRINCIPAL, UNLESS IT BE A CORPORATION)

STATE OF.. :..............................................

: SS.:..............................................

COUNTY OF.. :..............................................

On this __ day of __, 19, before me personally came __ to me known and known to me to be the person(s) described in and who executed the foregoing instrument and acknowledge that (s)he executed the same.

Notary Public..............................................

(ACKNOWLEDGMENT BY PRINCIPAL, IF A PUBLIC BENEFIT CORPORATION/CORPORATION)

STATE OF.. :..............................................

: SS.:..............................................

COUNTY OF.. :..............................................

On this __ day of __, 19_, before me personally came __ to me known, who, being duly sworn, did depose and say that (s)he is _ of _, the (public benefit corporation/corporation) described in and which executed the within instrument; [if the Principal has a corporate seal the following "that (s)he knew the seal of said corporate seal; that it was so affixed by order of the (members/board of directors of said public benefit corporation/corporation,"] and that (s)he signed his/her name thereto by like order.

Notary Public..................................................................................................

(ACKNOWLEDGMENT BY SURETY COMPANY: PREPARE SEPARATE ACKNOWLEDGMENT FOR EACH SURETY)

STATE OF.. :..............................................

: SS.:..............................................

COUNTY OF.. :..............................................

On this __ day of __, 19_, before me personally came __ to me known, who, being duly sworn, did depose and say that (s)he resides in __: that he is __of (insert name of Surety), the corporation described in and which executed the within instrument; that (s)he knows the seal of said corporation; that the seal affixed to said instrument is such corporate seal; that it was so affixed by the order of the Board of Directors of said corporation, and that (s)he signed his/her name thereto by like order; and the liabilities of said company do not exceed its assets as ascertained in the manner provided by the laws of the State of New York:

Notary Public...........................................................

(c) A performance surety bond, as specified in Title 6 of the Official Compilation of Codes, Rules and Regulations of the State of New York ("NYCRR") section 383-6.5(m)(2) of this Subpart, must be worded as follows, except that instructions in brackets are to be replaced with the relevant information and the brackets deleted:

SURETY BOND (PERFORMANCE)

Surety Bond Number: ______

Date surety bond executed: (If more than one Surety, identify surety bond number with respective surety)

Effective date: ______

Principal: (Legal name and business address of permittee)

Type of organization: ______

State of Incorporation: ______

Surety(ies): (Name(s) and business address(es) of Surety(ies))

Obligee: New York State Department of Environmental Conservation

Name, address, and penal sum amount(s) for the land disposal facility guaranteed by this surety bond (indicate land disposal facility and amounts separately_____________________________

_________________________________________________________

Total penal sum of surety bond: $__(payable in good and lawful money of the United States of America)

WHEREAS, The Principal has agreed to provide financial assurances to the New York State Department of Environmental Conservation (hereinafter referred to as "NYSDEC"), guaranteeing that the sum of $__ will be available and made payable to the Trustee(s) of the closure, post-closure, and Institutional Control Trust (hereinafter "The Trustee" or "The Trustees") as directed by the Commissioner of NYSDEC (hereinafter the "Commissioner", for the benefit of NYSDEC which guaranteed sums shall provide funding for [insert "implementation of the land disposal facility post-closure plan," and/or "implementation of the institutional control plan" or such other language upon written approval of the Commissioner, which limits or reduces the activities for which the surety bond guarantees funds] for the land disposal facility identified above as provided for and as required for the obtaining and issuing of a permit to own or operate a land disposal facility; and

WHEREAS, NYSDEC has required this surety bond, as set forth under the terms and conditions of the above-referred to permit, and in accordance with the New York State Environmental Conservation Law ("ECL"), Articles 27 and 29 and 6 NYCRR Part 383; and

WHEREAS, the Surety(ies) herein has realized, analyzed, and weighed the risks attendant to such endeavor and guaranty and has taken such risks into account in determining the consideration for the assumption of this guaranty; and

WHEREAS, said Principal is required, under the ECL, Articles 27 and 29, to have a permit in order to own or operate the land disposal facility identified above; and

WHEREAS, said Principal is required to provide financial assurance for [insert "implementing the land disposal facility closure plan," and/or "implementing the land disposal facility post-closure plan" and/or "implementing the institutional control plan" or such other language upon written approval of the Commissioner, which limits or reduces the activities for which the surety bond guarantee funds] as referred to above, as a condition of the permit(s);

PROVIDED, HOWEVER, that the condition of this surety bond is such that if the Principal shall promptly pay all monies due to NYSDEC to the Trustee of the closure, post-closure, and institutional control trust for which this surety bond is providing alternate financial assurance, as directed by the Commissioner in writing for [insert "implementing the land disposal facility closure plan," and/or "implementing the land disposal facility post-closure plan," and/or "implementing the land disposal facility institutional control plan," or such other language upon written approval of the Commissioner, which limits or reduces the activities for which the surety bond guarantees funds], such sum being identified above for the land disposal facility, pursuant to the permit(s) and 6 NYCRR Part 383;

OR, if the Principal shall provide alternate financial methods or instruments, as specified in 6 NYCRR Part 383 Subpart 383-6, and obtain the Commissioner's written approval of such alternate financial methods or instruments, within 30 days after the date notice of cancellation is received by the Principal, the Trustee of the closure, post-closure, and institutional control trust for which this surety bond is providing alternate financial assurance, and the Commissioner from the Surety(ies), as set forth below, then this obligation shall be null and void, otherwise it is to remain in full force and effect.

HOWEVER, to the extent that monies are paid by the Surety(ies)/Guarantor(s) under the obligations of this surety bond to the trustee for [insert "implementation of the land disposal facility closure plan," and/or "implementation of the land disposal facility post-closure plan," and/or "implementation of the land disposal facility institutional control plan," or such other language upon written approval of the Commissioner, which limits or reduces the activities for which the surety bond guarantees funds], as directed by the Commissioner, then the total penal sum of the surety bond shall be reduced by the amount so paid and penal sum allocated to the land disposal facility for which the payment was made shall be reduced by the amount of the payment or cost to surety of conducting the implementation of the land disposal facility Closure Plan, Post-Closure Plan, or Institutional Control Plan.

FURTHERMORE, the Surety(ies) shall become liable on this surety bond obligation only when the Principal has failed to fulfill the conditions set forth above, in 6 NYCRR Part 383, and in the permit issued to the Principal. Upon notification by the Commissioner that the Principal has failed to perform as guaranteed by the surety bond, the Surety(ies) shall either perform [insert "implementation of the land disposal facility closure plan," and/or "implementation of the land disposal facility post-closure plan," and/or "implementation of the land disposal facility institutional control plan," or such other language upon written approval of the Commissioner, which limits or reduces the activities for which the surety bond guarantees funds] in accordance with the [closure plan and/or post-closure plan and/or institutional control plan] and requirements of permits issued by NYSDEC requirements or pay funds to the Trustee of the closure, post-closure, and institutional control trust established pursuant to 6 NYCRR Part 383 Subpart 383-6.4(a), as directed by the Commissioner in the amount guaranteed for the land disposal facility(ies) as set forth above.

The surety(ies) may cancel the surety bond by sending notice of cancellation by certified mail, return receipt requested, not less than 90 days prior to the renewal date of the surety bond, to the Principal, the Trustee of the closure, post-closure, and institutional control trust, and the Commissioner; provided, however, that the cancellation shall not occur during the 90 days beginning on the date of receipt of the notice of cancellation by the Principal, the Trustee, and the Commissioner, as evidenced by the return receipts. Cancellation may not occur, however, without proof provided to the NYSDEC by the permittee of alternate financial assurance methods or instruments in accordance with 6 NYCRR section 383-6.5(j) and (k). If the permittee fails to obtain an alternate financial assurance method or instrument acceptable to the NYSDEC in accordance with 6 NYCRR section 383-6.5(j) and (k), the surety shall pay the amount required, to the Trustee(s) of the Trust(s) for which the bond is providing alternate coverage as directed by the Commissioner.

The Principal may terminate this surety bond by sending written notice to the Surety(ies); provided, however, that no such notice shall become effective until the permittee provides a copy to the Surety(ies) of written authorization for termination of the surety bond by the Commissioner from the Principal.

Principal and Surety(ies) hereby agree to adjust the penal sum of the surety bond yearly so that it guarantees the amount equal to the adjusted estimate of the costs [insert "implementation of the land disposal facility closure plan," and/or "implementation of the land disposal facility post-closure plan," and/or "implementation of the land disposal facility institutional control plan," or such other language upon written approval of the commissioner, which limits or reduces the activities for which the surety bond guarantees funds], provided that the penal sum does not increase by more than 20 percent in any one year, and no decrease in the penal sum takes place without the written permission of the Commissioner.

The parties signed below certify that the surety bond conforms in all respects to the requirements of 6 NYCRR Part 383 Subpart 383-6, as applicable, and the wording of this agreement is identical to the wording specified in 6 NYCRR Part 383 Subpart 383-6, as such regulations were constituted on the date shown immediately below. It is agreed that any provision of the surety bond inconsistent with such regulations is hereby amended to eliminate such inconsistency.

IN WITNESS WHEREOF, the Principal has hereunto set its hand and seal and the Surety(ies) has caused this Instrument to be signed by its _____ and its corporate seal to be hereunto affixed on this __ day of __, 19_.

Principal

Corporation, add seal and attestation)

By:.........................................................................................................................................................

____________

____________ Surety................................................................................................................

Attest:

____________

Secretary

(Add Corporate Seal)

Corporate Surety(ies)

(Name and Address)

State of Incorporation: ______

Liability limit: (For each land disposal facility, and in the aggregate)

$ (Corporate Seal)

Surety Bond premium: $_____

(Corporate Seal)

(ACKNOWLEDGMENT BY PRINCIPAL, UNLESS IT BE A CORPORATION)

STATE OF.. :........................................................................

: SS.: ......................................................................

COUNTY OF .. : .........................................................

On this ____ day of ____, 19 _, before me personally came ____ to me known and known to me to be the person(s) described in and who executed the foregoing instrument and acknowledge that (s)he executed the same.

Notary Public..............................................................................................

(ACKNOWLEDGMENT BY PRINCIPAL, IF A PUBLIC BENEFIT CORPORATION/CORPORATION)

STATE OF________:

: SS.:............................................................................

COUNTY OF________:

On this ____ day of ____, 19 _, before me personally came ____ to me known, who, being by me duly sworn, did depose and say that (s)he resides in __; that (s)he is __ of __, the [public benefit corporation/corporation] described in and which executed the instrument; [if a private corporation add the following "that (s)he knew the seal of said corporation; that the seal affixed to said instrument was such corporate seal; that it was so affixed by order of the (members/board of directors) of said public benefit corporation/corporation, "] and that (s)he signed his/her name thereto by like order.

Notary Public ...................................................................

(ACKNOWLEDGMENT BY SURETY COMPANY: PREPARE SEPARATE ACKNOWLEDGMENT FOR EACH SURETY)

STATE OF________:

: SS.:...........................................................................................

COUNTY OF________:

On this ____ day of ____, 19 _, before me personally came __to me known, who, being by me duly sworn, did depose and say that (s)he resides in __; that (s)he is __ of (insert name of Surety), the corporation described in and which executed the instrument; that (s)he knows the seal of said (corporation); that the seal affixed to said instrument is such corporate seal; that is was so affixed by the order of the (members/Board of Directors) of said corporation, and that (s)he signed his/her name thereto by like order; and that the liabilities of said company do not exceed its assets as ascertained in the manner provided by the laws of the State of New York:

Notary Public ..............................................................................................

(d) A letter of credit, as specified in Title 6 of the Official Compilation of Codes, Rules and Regulations of the State of New York ("NYCRR") section 383-6.5(m)(3) of this Subpart, must be worded as follows, except that instructions in brackets are to be replaced with the relevant information and the brackets deleted:

Name and address of issuing institution.. (Date)..........................................................................................

Commissioner

New York State Department of Environmental Conservation

625 Broadway

Albany, New York 12233 and

[Insert name and address of Trustee(s) of the closure, post-closure, and institutional control trust, and/or the Remedial Action/Third-Party Compensation Trust (Operating Closure, and Post-Closure Periods), and/or the remedial action/third-party compensation trust (institutional control period)]

Re: Letter of Credit No. _____

Dear Sir or Madam:

We hereby establish and open our Irrevocable Standby Letter of Credit No. _ in your favor, at the request and for the account of [permittee name and address] up to the aggregate amount of [insert amount of dollars in words] U.S. dollars [$.. ], available upon presentation of.........................................................................

(1) your sight draft, bearing reference to this letter of Credit No. _, and

(2) your signed statement reading as follows: "I certify that the amount of the draft is payable pursuant to regulations issued under authority of the New York State Environmental Conservation Law."

This letter of credit is effective as of [date] and shall expire on [date at least one year later], but such expiration date shall be automatically extended for a period of [at least one year] on [date] and on each successive expiration date thereafter, unless, at least 90 days before the current expiration date, we notify you, [insert permittee's name], and [insert name of Trustee(s) of Trust(s) for which this letter of credit is providing alternate financial assurance] by certified mail, return receipt requested, that we have decided not to extend this letter of credit beyond the current expiration date. In the event you are so notified, any unused portion of the credit shall be available upon presentation of your sight draft and the above-referred to signed statement for 90 days after the date of receipt by you, [insert permittee's name], and [insert names of Trustee(s) for which this letter of credit is providing alternate financial assurance], as shown on the signed return receipts.

This is a notation credit. Each draft hereunder must be endorsed on the reverse of this letter of credit and each draft or attached writing must indicate that such notation has been made. This letter of credit must be attached to the last draft when the credit established by this letter of credit is exhausted.

The sum or sums of all drafts under this letter of credit must not exceed the aggregate amount of [insert amount of dollars in words] U.S. dollars [$ ]. The purpose of this letter of credit is to ensure that funds will be available and drafts may be drawn hereunder for the account of the Commissioner of the New York State Department of Environmental Conservation, for the benefit of the New York State Department of Environmental Conservation, for purposes pursuant to Articles 27 and 29 of the New York State Environmental Conservation Law............................................................

The [insert name of bank issuing letter of credit] agrees that whenever this letter of credit is drawn on, under and in compliance with the terms of this letter of credit, the [insert name of bank issuing letter of credit] shall duly honor such draft upon presentation to [insert name of bank issuing letter of credit] and the [insert name of bank issuing letter of credit] shall pay the amount of the draft to that person or persons specified in writing by the Commissioner of the New York State Department of Environmental Conservation, including but not limited to the Trustee(s) of the Trust(s) for which this letter of credit is providing alternate financial assurance, in accordance with the Commissioner's instructions.

The parties signed below certify that the letter of credit conforms in all respects to the requirements of 6 NYCRR Part 383 Subpart 383-6, as applicable, and as such regulations were constituted on the date shown immediately below. It is agreed that any provision of the letter of credit that is inconsistent with such regulations is hereby amended to eliminate such inconsistency.

Except as otherwise stated herein, this letter of credit is to be governed by the Uniform Commercial Code of the State of New York.

Very truly yours,...........................................................

(Insert name of institution.....................................................

issuing credit)..........................................................................

By:..........................................................................................

(insert name and title of..........................................................................................

authorized employee or officer..........................................................................................

of institution issuing..........................................................................................

letter of credit)..........................................................................................

Endorsements of Drafts.. AMOUNT..........................................................................................

Drawn..........................................................................................

Date

..........................................................................................

Negotiated By

..........................................................................................

In Words

In Figures

__________________________________________________________

This letter of credit should be canceled and attached to the last draft.

(e) A certificate of insurance, as specified in Title 6 of the Official Compilation of Codes, Rules and Regulations of the State of New York ("NYCRR") section 383-6.5(m)(4) of this Subpart, must be worded as follows, except that instructions in brackets are to be replaced with relevant information and the brackets deleted.

CERTIFICATE OF INSURANCE

Name and Address of Insurer (hereinafter called the "Insurer"): _______________________________

Name and Address of Insured (hereinafter called the "Insured"): _______________________________

Land Disposal Facilities: [List for each land disposal facility]:

names, addresses, and the amount of insurance for remediation of failures or personal injury or property damage (these amounts for all land disposal facilities covered must total the limits of liability shown below).

Limits of Liability: [Insert the dollar amount of limits of the insurer's liability for each form of coverage provided].

Policy Number:

__________________________________________________________

Effective Date:

__________________________________________________________

Expiration Date:

The Insurer hereby certifies that it has issued to the Insured the policy of insurance identified above and annexed hereto (hereinafter referred to as the "policy") to provide financial assurance for [insert "remediation of failures" and/or "compensation for third party personal injury and property damage caused by operation of the land disposal facility" or such other language, upon written approval of the Commissioner of the New York State Department of Environmental Conservation (hereinafter referred to as the "Commissioner") which limits or reduces the extent of the activities covered] for the land disposal facilities identified above.

Whenever requested by the Commissioner, the Insurer agrees to furnish to the Commissioner a duplicate original of the Policy listed above, including all endorsements thereon.

I hereby certify that the wording of this certificate conforms in all respects to the requirements of 6 NYCRR Part 383 Subpart 383-6, as applicable, and the wording of the certificate of insurance is identical to the wording specified in 6 NYCRR Part 383 Subpart 383-6 as such regulations were constituted on the date shown immediately below. It is agreed that any provision of the insurance policy that is inconsistent with such regulations is hereby amended to eliminate such inconsistency.

(Authorized signature for...........................................................................................................

Insurer)..................................................................................................................

Sworn to before me this __, day of __, 19 _.

Notary Public.................................................................................................

(f) A guarantee, as required by Title 6 of the Official Compilation of Codes, Rules, and Regulations of the State of New York ("NYCRR") by section 383-6.5(m)(5) of this Subpart, must be worded as follows, except that instructions in brackets are to be replaced with the relevant information and the brackets deleted.

GUARANTEE

Name and address of guarantor

(Date)

WHEREAS, [name of guaranteeing entity], (hereinafter called the "Guarantor"), a corporation organized under the laws of the State of [insert name of State of incorporation], desires to promote the activities of [name of permittee], guarantor's [indicate business or other relationship of guarantor to permittee such as "subsidiary," "affiliate," etc.]; and

WHEREAS, the New York State Department of Environmental Conservation (hereinafter referred to as "Obligee" or "NYSDEC") is unwilling to issue a permit to, or otherwise authorize or approve the operation or continued operation by [name of permittee] of a certain land disposal facility, referred to in paragraph 1 below, hereinafter referred to as the "land disposal facility", unless NYSDEC receives a guarantee of the undersigned covering the obligations and liabilities of [name of permittee] to NYSDEC arising out of the [insert "implementation of the closure plan" and/or "implementation of the post-closure plan" and/or "implementation of the institutional control plan," and/or "remediation of failures," and/or "coverage of personal injury or property damage to third parties caused by the operation of the land disposal facility" or such language upon written approval of the Commissioner which limits the activity guaranteed] by [name of permittee] of the land disposal facility.

NOW, THEREFORE, in consideration of these promises and of other good and valuable consideration, and in order to induce NYSDEC now, and from time to time, in its discretion, to issue permits to [name of permittee] for the ownership or operation of the land disposal facility, the undersigned hereby guarantees, absolutely and unconditionally, to NYSDEC the payment of all liabilities of [name of permittee] of whatever nature, whether now existing or hereafter incurred, and whether absolute or contingent, arising out of the obligation of [name of permittee] to NYSDEC for the [insert "implementation of the closure plan," "implementation of the post-closure plan," "implementation of the institutional control plan," "remediation of failures," and/or "coverage of personal injury or property damage to third parties caused by the operation of the land disposal facility"] as herein before stated, to or for the land disposal facility in accordance with the plans, cost estimates, coverage requirements, and permits submitted by or issued to [name of permittee] in accordance with New York State Environmental Conservation Law ("ECL"), Articles 27 and 29 and 6 NYCRR Part 383, (all of which are hereinafter collectively referred to as the "Liabilities of the [insert name of permittee])."

The Guarantor further states as follows:

1. [Name of permittee] owns or operates the following land disposal facility covered by this Guarantee: [List for each land disposal facility: name and address. Indicate for the land disposal facility the activities covered by this guarantee, to wit, implementation of the closure plan, implementation of the post-closure plan, implementation of the institutional control plan, remediation of failures, and compensation for personal injury and property damage to third parties caused by operation of the land disposal facility].

2. "Closure plan," "post-closure plan" and "institutional control plan" as used below refer to the plans prepared, submitted, and maintained as required by ECL Articles 27 and 29 and 6 NYCRR Part 383, for the land disposal facilities identified in paragraph 1 above. "Remediation of failures," and "third party compensation for personal injury and property damage caused by operation of the land disposal facility" as used below refer to the coverage requirements established by 6 NYCRR sections 383-6.9 and 383-6.10 of this Subpart pursuant to ECL Articles 27 and 29 for the land disposal facility identified in paragraph 1 above.

3. For value and consideration received from [permittee] Guarantor guarantees to NYSDEC that in the event that [insert name of permittee] fails to [insert "implement closure plan," and/or "implement the post-closure plan" and/or "implement the institutional control plan," and/or "perform or make payment for remediation of failures," and/or "satisfy a judgment, release, or settlement for personal injury and/or property damage to third parties caused by operation of the land disposal facility"] of the above land disposal facility, as referred to in paragraph 1 above, in accordance with the financial assurance plan and other permit requirements, the Guarantor shall make payment, as directed by the Commissioner of NYSDEC (hereinafter referred to as the "Commissioner"), up to the full amount of the guarantee, in the name of [name of permittee] to the Trustee(s) of [insert "the Closure, Post- Closure, and institutional control trust," and/or the "Remedial Action/Third-Party Compensation Trust (Operation, Closure, and Post Closure Periods)," and/or "the remedial action/third-party compensation trust (institutional control period)" ], as specified by the Commissioner.

4. The Guarantor agrees to notify the Commissioner, by certified mail return receipt requested of a voluntary or involuntary case or proceeding under title 11, of the United States Code naming Guarantor as Debtor, within ten (10) days after commencement of the case or proceeding.

5. Guarantor agrees that within thirty (30) days after being notified by the Commissioner of a determination that Guarantor no longer meets the requirements established for a Guarantor in 6 NYCRR section 383-6.5(m)(4) of this Subpart, or that the Guarantor no longer is capable of providing the financial assurance guarantee, the Guarantor either shall establish alternate financial assurance methods or instruments as required by 6 NYCRR section 383-6.5(j) and (k) of this Subpart in the name of [name of permittee] unless [name of permittee] has done so or shall provide funds to the Trustee(s) as directed by the NYSDEC up to the full amount of this guarantee.

6. Guarantor agrees to remain bound under this Guarantee notwithstanding any or all of the following:

(a) Amendment or modification of the financial assurance plan submitted by [permittee] to NYSDEC pursuant to 6 NYCRR section 383-6.3 of this Subpart;

(b) Amendment or modification of a permit issued by the NYSDEC;

(c) The extension or reduction of the time of performance of implementation of the land disposal facility closure plan, implementation of the land disposal facility post-closure plan, or implementation of the land disposal facility institutional control plan;

(d) Amendment or modification of the remedial action coverage requirements or third party compensation coverage requirements established by 6 NYCRR sections 383-6.9 and 383-6.10 of this Subpart; or

(e) Any other modification or alteration of an obligation of the permittee pursuant to 6 NYCRR Part 383.

7. Guarantor agrees to remain bound under this Guarantee for so long as [name of permittee] must comply with the applicable financial assurance requirements of 6 NYCRR Part 383 Subpart 383-6 for the above-listed land disposal facility, except that the Guarantor may cancel this Guarantee by sending notice by certified mail, return receipt requested, of the Trust(s) for which this Guarantee is providing alternate financial assurance, and to [name of permittee], such cancellation to become effective no earlier than 90 days after receipt of such notice by NYSDEC, Trustee(s) of the trust(s) for which this guarantee is providing alternate financial assurance, and [name of permittee], as evidenced by the return receipts. Such notice will only terminate this Guarantee with respect to all liabilities of [name of permittee] to NYSDEC after the expiration of the 90 day period following receipt of such notice by NYSDEC, the Trustee(s) of the Trust(s) for which this Guarantee is providing alternate financial assurance and [name of permittee], as evidenced by the return receipts.

8. Guarantor agrees that if [name of permittee] fails to provide alternate financial assurance as required by 6 NYCRR Part 383 Subpart 383-6, as applicable, and obtain written approval of such assurance from the Commissioner, or the Commissioner's designee, within 60 days after a notice of cancellation by the Guarantor is received by the Commissioner the permittee and the Trustee(s) for which the Guarantee is providing alternate financial assurance from the Guarantor, the Guarantor shall provide such alternate financial assurance in the name of [name of permittee] or shall provide funds to the Trustee(s) of the Trust(s) for which this guarantee is providing alternate financial assurance as directed by the NYSDEC up to the full amount of this Guarantee.

9. The undersigned hereby waives any or all of the following:

(a) Notice of acceptance of this Guarantee by the Commissioner or by [name of permittee];

(b) Notice of amendments or modification of the financial assurance plan submitted by [permittee] to NYSDEC pursuant to 6 NYCRR section 383-6.3(c) or (d) of this Subpart;

(c) Notice of amendments or modifications of land disposal facility permit(s) issued by NYSDEC; and

(d) Any demand to [name of permittee] for payments which this instrument guarantees.

10. All monies available to NYSDEC for application in payment or reduction of the liabilities of [name of permittee] may be applied by NYSDEC in such manner and in such amounts and at such time or times as NYSDEC may see fit to the payment or reduction of such of the liabilities of [name of permittee] as NYSDEC may elect.

11. This is a guarantee of payment and not of collection and the undersigned further waives any right to require that any action be brought against [name of permittee] or any other person, or to require that resort be had to any security or to any balance of any trust, letter of credit, insurance policy, or surety bond, to the benefit of NYSDEC.

12. Each reference herein to NYSDEC shall be deemed to include its successors and assigns, in whose favor the provisions of this Guarantee shall also enure. Each reference herein to the undersigned shall be deemed to include the heirs, executors, administrators, legal representatives, successors, and assigns of the undersigned, all of whom shall be bound by the provisions of this Guarantee.

13. If any party hereto shall be in partnership, the agreements and obligations on the part of the undersigned herein contained shall remain in force and applicable notwithstanding any changes in the individuals composing the partnership and the term "undersigned" shall include any altered or successive partnership, but the predecessor partnerships and their partners shall not thereby be released from any obligation or liability.

14. No delay on the part of NYSDEC in exercising any right hereunder, or failure to exercise the same, shall operate as a waiver of such right; no notice to or demand on the undersigned shall be deemed to be a waiver of the obligation of the undersigned or of the right of NYSDEC to take further action without notice or demand be provided herein, nor in any event shall any modification or waiver of the provisions of this Guarantee be effective unless in writing, nor shall any such waiver be applicable, except in the specific instance for which given.

15. This Guarantee is, and shall be deemed to be, a contract entered into, under and pursuant to the laws of the State of New York, and shall be in all respects governed, construed, applied, and enforced in accordance with the laws of New York State; and no defense given or allowed by the laws of any other state or country shall be interposed in any action hereon unless such defense is also given or allowed by the laws of the State of New York.

16. The undersigned hereby certifies that the Guarantee conforms in all respects to the requirements of 6 NYCRR Part 383 Subpart 383-6, as applicable, and the wording of this guarantee is identical to the wording specified in 6 NYCRR Part 383 Subpart 383-6 as such regulations were constituted on the date shown immediately below. It is agreed that any provision of the Guarantee that is inconsistent with such regulations is hereby amended to eliminate such inconsistency.

STATE OF.. :......................................................................................................

: SS.:...................................................................................................

COUNTY OF.. :....................................................................................

On this ___ day of ____, 19 _, before me personally came ____, to me known, who, by me duly sworn, did depose and say that (s)he is __ of __, corporation described in and which executed the above instrument; [if private corporation insert "that (s)he knows the seal of said corporation; that the seal affixed by order of the Board of Directors of said corporation,"] and that (s)he signed his/her name thereto by like order.

Notary Public.............................................................................................................................

N.Y. Comp. Codes R. & Regs. Tit. 6 §§ 383-6.12