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Subpart 383.6: Financial Assurance Requirements

(Statutory authority: Environmental Conservation Law, arts. 3, 17, 19, 27, 29)

[Effective Date September 6, 2006]

Contents:

Sec.

§383-6.1 Purpose and Applicability.

(a) Purpose. The purpose of Subpart 383-6 is to establish financial assurance requirements which will be included as a condition of a permit for a land disposal facility which is subject to Parts 382 and 383 of this Title and is located wholly or partially within the State of New York.

(b) Applicability. The requirements of Subpart 383-6 are applicable to every applicant and every permittee of a land disposal facility.

(c) References to Part 383 in this subpart refer to regulations to be promulgated by the department pursuant to Articles 3, 27, and 29 of the Environmental Conservation Law.

§383-6.2 Definitions.

For the purpose of Subpart 383-6, the definitions of 6 NYCRR Part 382 apply.

The following terms have the following meanings when used in Subpart 383-6, the definitions are intended to assist in the understanding of these regulations and are not intended to limit the meanings of the terms in any way that conflicts with generally accepted accounting practices.

(a) "Assets" means all existing and all probable future economic benefits obtained or controlled by a particular entity.

(b) "Closure Period" means the period of time after the operation period during which facility closure is carried out and site closure and stabilization is completed.

(c) "Closure Plan" means the plan for site closure and stabilization prepared as required by this Part.

(d) "Closure, Post-Closure, and Institutional Control Trust" means the trust established in accordance with section 383-6.4(a)(1) of this Part.

(e) "Current cost estimate" means the most recent of the cost estimates prepared in accordance with this Part.

(f) "Current dollars" means the dollar value in the year a cost estimate is prepared, as opposed to an historical or future dollar value.

(g) "Financial Assurance Plan" means the plan for financial assurance prepared in accordance with section 383-6.3 of this Part.

(h) "Guarantee" means a contractual undertaking to answer for the debt of another.

(i) "Guarantor" means the party providing a guarantee.

(j) "Institutional Control Period" means a period of time after the post-closure period during which the State maintains control of access to the site and carries out a program including environmental monitoring, periodic surveillance, and minor custodial care.

(k) "Institutional Control Plan" means the plan for institutional control prepared as required by this Part.

(l) "Letter of credit" is a written instrument whereby the issuer will honor drafts or other demands for payment upon compliance with the conditions specified in the letter.

(m) "Limit of Liability" means the total amount an insurer is obligated to pay, under an insurance policy, for remediation of failures and/or for personal injury or property damage to third parties caused by the operation of the land disposal facility.

(n) "Low-Level Radioactive Waste Fund" or "LLRW Fund" means the trusts, established pursuant to section 383-6.4 of this Part, consisting of the Closure, Post-Closure, and Institutional Control Trust, the Remedial Action/Third-Party Compensation Trust (Operation, Closure, and Post-Closure Periods), and the Remedial Action/Third-Party Compensation Trust (Institutional Control Period).

(o) "Open-ended" means an instrument which must be automatically renewed at the end of its given term.

(p) "Operation Period" means the period of time from the initial receipt of waste at the land disposal facility until the closure period begins.

(q) "Parent corporation" means a corporation which directly owns at least 50 percent of the voting stock of a corporation that is the land disposal facility permittee. The latter corporation is a subsidiary of the parent corporation.

(r) "Pay-in amount" means the amount of each payment required to be paid to a trust in each consecutive payment.

(s) "Pay-in period" means the period of time from the establishment of a trust until it is fully funded.

(t) "Payment bond" means a surety bond under which the surety company is obligated to pay a sum of money upon the occurrence of a specified event.

(u) "Penal sum" means the face amount of a surety bond.

(v) "Performance bond" means a surety bond under which the surety is obligated to pay a sum of money or perform a specified activity at the occurrence of a specified event.

(w) "Personal injury" means injury to the body, sickness or disease, including death resulting from any of these.

(x) "Personal injury" means bodily injury as that term is given meaning by applicable state law. However, this term does not include those liabilities which, consistent with standard industry practices, are excluded from coverage in liability policies for bodily injury.

(y) "Post-Closure Period" means the period of time after completion of closure and before the beginning of the institutional control period during which the permittee maintains control of the land disposal facility and carries out a program of monitoring and maintenance as required by this Part to ensure that the land disposal facility is stable and ready for institutional control.

(z) "Post-Closure Plan" means the plan for post-closure monitoring and maintenance prepared as required by this Part.

(aa) "Pre-Closure Plan" means that period from the effective date of a permit issued by the Department for the land disposal facility until facility closure activities have begun. This period includes the construction phase and operation period.

(bb) "Remedial Action/Third Party Compensation Trust (Operation, Closure, Post-Closure Periods)" means the trust established pursuant to section 383-6.4(a)(2) of this Part.

(cc) "Remediation of Failures" means land disposal facility repair and environmental cleanup and restoration of the land disposal facility and other affected areas including but not limited to activities undertaken to eliminate, remove, abate, control or monitor actual or potential health and environmental hazards.

(dd) "Remedial Action/Third Party Compensation Trust (Institutional Control Period)" means the trust established pursuant to section 383-6.4(a)(3) of this Part.

(ee) "Surety bond" means an arrangement by which a surety company assumes liability for the specified obligations of a principal, if the principal fails to pay or perform as required by the permit.

(ff) "Third party" means a party who is not the permittee, a parent corporation of the permittee, or a subsidiary of the permittee.

§383-6.3 General Requirements.

(a) Costs that must be covered. Every permittee must establish and maintain financial assurance to meet the following:

(1) costs of all permitted activities during the pre-closure period;

(2) costs, estimated in accordance with sections 383-6.6, 383-6.7 and 383-6.8 of this Part, of implementing the closure plan, post-closure plan, and institutional control plan; and

(3) coverage requirements, in accordance with sections 383-6.9 and 383-6.10 of this Part, for remediation of failures and for personal injury and property damage to third parties caused by the operation of the land disposal facility.

(b) Documentation the applicant must provide. Every applicant must provide the department with a financial assurance plan as part of a complete permit application. The financial assurance plan must be prepared in accordance with sections 383-6.3 through 383-6.12 of this Part and must include all of the items specified in paragraphs 383-6.3(b)(1) through (b)(4) of this section.

(1) Pre-Closure Period. The financial assurance plan for the pre-closure period must include documentation demonstrating that the applicant either possesses the necessary funds, or has reasonable assurance acceptable to the department of obtaining the necessary funds, or a combination of the two, to cover the estimated costs of conducting all permitted activities, including, but not limited to, the costs of design, construction, operation, disposal, safety planning, and monitoring and maintenance during the pre-closure period.

(2) Closure, and Monitoring and Maintenance (Closure, Post-Closure, and Institutional Control Periods). The financial assurance plan for the closure, the post-closure, and the institutional control periods must include the following documentation:

(i) a cost estimate, in current dollars and prepared pursuant to section 383-6.6 of this Part, for implementing the closure plan;

(ii) a cost estimate, in current dollars and prepared pursuant to section 383-6.7 of this Part, for implementing the post-closure plan;

(iii) a cost estimate, in current dollars and prepared pursuant to section 383-6.8 of this Part, for implementing the institutional control plan;

(iv) the name and address of the applicant's preferred choice, and a recommended alternate, for the trustee of the Closure, Post-Closure, and Institutional Control Trust, established pursuant to section 383-6.4(a)(1) of this Part, and documentation that the trustee meets the requirements of section 383-6.4(b)(1) of this Part;

(v) an estimate of the total amount of funds to be accumulated in the Closure, Post-Closure, and Institutional Control Trust established pursuant to section 383-6.4 of this Part;

(vi) an unexecuted copy of the proposed trust agreement, as required by section 383-6.4(b)(2), and evidence of commitment from the proposed trustee that the trustee intends to enter into such trust agreement with the applicant;

(vii) a statement specifying the alternate financial assurance method(s) or instrument(s), allowed pursuant to section 383-6.5(m) of this Part, that the applicant proposes to use for meeting the requirements of section 383-6.5(a) of this Part;

(viii) an unexecuted copy of each proposed alternate financial assurance method or instrument;

(ix) a statement issued by an independent certified public accountant demonstrating that the alternate financial assurance method(s) or instrument(s) proposed by the applicant provides the level of coverage required by section 383-6.5(a) of this Part; and

(x) evidence of commitment from the provider(s) of the proposed alternate financial assurance instrument(s) assuring that such instrument(s) will be given to the applicant in the amount specified in the financial assurance plan in conformance with terms of any permit issued by the department to the applicant for a land disposal facility.

(3) Remedial Action/Third-Party Compensation (Operation, Closure, and Post-Closure Periods). The financial assurance plan for remediation of failures and third-party compensation during the operation, closure, and post-closure periods must include the following documentation:

(i) the proposed coverage levels, in current dollars and prepared pursuant to sections 383-6.9 and 383-6.10 of this Part, for the costs of remediation of failures and third-party compensation during the operation, closure, and post-closure periods;

(ii) the name and address of the applicant's preferred choice, and recommended alternate, for the trustee of the Remedial Action/Third-Party Compensation (Operation, Closure, and Post-Closure Periods) Trust and documentation that the trustee meets the requirements of section 383-6.4(b)(1) of this Part;

(iii) a statement specifying the alternate financial assurance method(s) or instrument(s), allowed under section 383-6.5(m) of this Part, that the applicant proposes to use for meeting the requirements of section 383-6.5(c) of this Part;

(iv) an unexecuted copy of each proposed alternate financial assurance method or instrument;

(v) a statement issued by an independent certified public accountant demonstrating that the alternate financial assurance method(s) or instrument(s) proposed by the applicant meet(s) the requirements of section 383-6.5(c) of this Part; and

(vi) evidence of commitment from the provider(s) of the proposed alternate financial assurance instrument(s) assuring that such instrument(s), will be given to the applicant in the amount specified in the financial assurance plan in conformance with the terms of any permit issued by the department to the applicant for a land disposal facility.

(4) Remedial Action/Third-Party Compensation (Institutional Control Period). The financial assurance plan for remediation of failures and third-party compensation during the institutional control period must include the following documentation:

(i) the proposed coverage levels, in current dollars and prepared pursuant to sections 383-6.9 and 383-6.10 of this Part, for the costs of remediation of failures and third-party compensation during the institutional control period;

(ii) the name and address of the applicant's preferred choice, and a recommended alternate, for the trustee of the Remedial Action/Third-Party Compensation (Institutional Control Period) Trust and documentation that the trustee meets the requirements of section 383-6.4(b)(1) of this Part;

(iii) a statement specifying the alternate financial assurance method(s) or instrument(s), allowed under section 383-6.5(m) of this Part, that the applicant proposes to use for meeting the requirements of section 383-6.5(e) of this Part;

(iv) an unexecuted copy of each proposed alternate financial assurance method or instrument;

(v) a statement issued by an independent certified public accountant demonstrating that the alternate financial assurance instrument(s) proposed by the applicant meet(s) the requirements of section 383-6.5(e) of this Part; and

(vi) evidence of commitment from the provider(s) of the proposed alternate financial assurance method(s) or instrument(s) assuring that such method(s) or instrument(s), at the value specified in the financial assurance plan, will be given to the applicant in conformance with the terms of any permit issued by the department to the applicant for a land disposal facility.

(c) Submission of the financial assurance plan. The financial assurance plan must be submitted for review and approval by the department as part of a permit application for a land disposal facility. The department will review the financial assurance plan to insure the adequacy of the financial assurance methods or instruments. Every permit issued by the department for a land disposal facility must include conditions requiring the permittee to comply with the financial assurance plan approved by the department.

(d) Documentation the permittee must provide. The financial assurance plan must be reviewed and approved by the department annually. The permittee must annually submit an adjusted financial assurance plan to the department, no later than 90 days prior to the anniversary date of the issuance of the permit, except in the year when such permit expires. In the year the permit expires, the permittee must submit an adjusted financial assurance plan as part of the permit renewal application. The adjusted financial assurance plan must include all the information specified in subdivision 383-6.3(b) of this section in addition to the following:

(1) a statement of current value of:

(i) the Closure, Post-Closure, and Institutional Control Trust, established pursuant to section 383-6.4(a)(1) of this Part;

(ii) the Remedial Action/Third-Party Compensation Trust (Operation, Closure, and Post-Closure Periods), established pursuant to section 383-6.4(a)(2) of this Part; and

(iii) the Remedial Action/Third-Party Compensation Trust (Institutional Control Period), established pursuant to section 383-6.4(a)(3) of this Part;

(2) a proposed schedule of payments, calculated in accordance with section 383-6.4(c) of this Part, to each such trust for the year beginning on the anniversary date of the issuance of the permit by the department for the land disposal facility;

(3) documentation issued by an independent certified public accountant demonstrating that the total amount to be deposited by the permittee into each trust of the LLRW Fund established by section 383-6.4 of this Part during the subsequent one-year period will meet the requirements of section 383-6.4 of this Part;

(4) documentation issued by an independent certified public accountant demonstrating that the alternate financial assurance method(s) or instrument(s) meet(s) the requirements of sections 383-6.5(a), (c), and (e) of this Part, including:

(i) a statement of the current value of the alternate financial assurance instruments maintained by the permittee;

(ii) a calculation of the difference between the actual value of each trust, established pursuant to section 383-6.4(a) of this Part, and the total amount required for each trust as determined pursuant to section 383-6.4(d) of this Part; and (iii) an estimate of the value of each trust at the next anniversary date of the issuance of the permit by the department for the land disposal facility; and

(5) adjustments adequately reflecting inflation; changes in construction, operation, or monitoring and maintenance costs; changes in the costs of implementing the closure plan, the post-closure plan, and the institutional control plan; changes in the amount of disturbed land; changes in engineering plans, facility technology, and/or facility size; and any portion of the closure plan, post-closure plan, or institutional control plan which has been completed.

(6) adjustments adequately reflecting changes in the nature and volume of low-level radioactive waste involved; any changes in the degree and duration of risk to human health or the environment.

(e) Adjustments to the financial assurance plan. Except where indicated otherwise, the department's review of the financial assurance plan is governed by Sections 621.11 and 621.13 of this Title.

(1) Within 30 days following the receipt of the adjusted financial assurance plan the department will review the adjusted financial assurance plan and either approve it or provide the permittee with a written statement of reasons why it will not approve the adjusted financial assurance plan. In the event that the adjusted financial assurance plan is not approved, the permittee must submit a revised adjusted financial assurance plan for the department's review and approval within 30 days of the date of the department's written statement of disapproval.

(2) The department may require the permittee by written notice to revise the financial assurance plan, or any portion thereof, at any time during the pre-closure period of the land disposal facility if the department finds that the amount of financial assurance provided pursuant to the financial assurance plan is insufficient to meet the requirements of paragraphs 383-6.3(a)(1), (a)(2), and (a)(3) of this section. The permittee must submit a revised financial assurance plan to the department within 30 days of receiving such written notice from the department.

§383-6.4 Low-Level Radioactive Waste Fund.

(a) Required trusts. The permittee must establish three separate trusts which conform to the requirements of this section. The following trusts will be collectively referred to in these regulations as the Low-Level Radioactive Waste Fund (LLRW Fund):

(1) The Closure, Post-Closure, and Institutional Control Trust must be established by the permittee to provide financial assurance for costs of implementing the closure plan, the post-closure plan, and the institutional control plan;

(2) The Remedial Action/Third-Party Compensation Trust (Operation, Closure, Post-Closure Periods) must be established by the permittee to provide financial assurance during the operation, closure, and post-closure periods of the land disposal facility for the remediation of failures and for third party compensation for personal injury and property damage caused by the operation of the land disposal facility; and

(3) The Remedial Action/Third-Party Compensation Trust (Institutional Control Period) must be established by the permittee to provide financial assurance during the institutional control period for the remediation of failures and for third party compensation for personal injury and property damage caused by the operation of the land disposal facility.

(b) Establishment of the trusts.

(1) The permittee must appoint the trustee(s) to supervise and manage each of the three trusts constituting the Low-Level Radioactive Waste Fund. The initial and any subsequent appointment of the trustee(s) is subject to the prior written approval of the department. Each trustee must be an entity that has the authority to act as a trustee and whose trust operations are regulated and examined by a federal or state agency. The trustee's duties are limited to the duties set forth in subsection 383-6.4(c) of this Part and in the instrument required pursuant to subsection 383-6.12(a) of this Part.

(2) At least 60 days prior to the initial receipt of waste at the land disposal facility, the permittee must execute a trust agreement with the wording identical to the wording required by section 383-6.12(a) of this Part and submit it to the department. The trust agreement must be accompanied by a formal certification of acknowledgment, as required by subdivision 383-6.12(a) of this Part. The permittee must submit an originally executed duplicate of each trust agreement to the department.

(c) Duties of the trustee.

(1) Each trustee of a trust established pursuant to paragraphs 383-6.4(a)(1), (a)(2), or (a)(3) of this section must establish, subject to approval by the department, the pay-in period, pay-in frequency, and pay-in amount to be met by the permittee. The pay-in amount must be based on the determination by the department of the amounts to be held in the fully-funded trust(s), as required by subdivision 383-6.4(d) of this section. Each trustee must determine the pay-in amounts for each such trust under that trustee's authority according to the following formula:383-6.

pay-in amount = (CE - CV)/Y
N

Where:

CE = for the Closure, Post-Closure, and Institutional Control Trust, thecombined cost estimate for implementing the closure plan, the post-closure plan and the institutional control plan; or

CE = for the Remedial Action/Third-Party Compensation Trust (Operation, Closure, and Post-Closure Periods), the amounts of coverage required by sections 383-6.9(a) and of this Part for remediation of failures and third-party compensation during the operation, closure, and post-closure periods; or

CE = for the Remedial Action/Third-Party Compensation Trust (Institutional Control Period), the amounts of coverage required by sections 383-6.9(b) and 383-6.10(b) of this Part for remediation of failures and third party compensation during the institutional control period; and

CV = the current value of each trust;

Y = the number of years remaining before land disposal facility closure, but in no event may Y exceed 30 years

N = the number of payments required per year

(2) The pay-in period, pay-in frequency, and pay-in amount are subject to approval by the department through permit issuance, modification, or renewal procedures of this Part.

(3) The trustee shall annually, not more than 30 days prior to the anniversary date of the establishment of the trust, determine the value of the trust under the trustee's management and calculate the difference between the current value of the trust and the total amount of financial assurance required by the department pursuant to subdivision 383-6.4(d). The trustee must submit a written statement, certified by an independent certified public accountant, to the permittee and the department confirming the value of the trust and the result of the calculation within 15 days prior to the anniversary date of the establishment of the trust.

(4) After the department certifies that the post-closure plan has been satisfactorily completed, the trustee of the Remedial Action/Third-Party Compensation Trust (Operation, Closure, and Post-Closure Periods) must transfer any funds remaining in the Remedial Action/Third-Party Compensation Trust (Operation, Closure, and Post-Closure Periods), less the expenses for administration of such trust, into the Remedial Action/Third-Party Compensation Trust (Institutional Control Period).

(5) If expenditures are made during the operation period from the Closure, Post-Closure, and Institutional Control Trust, the trustee must:

(i) adjust the pay-in amount to ensure that the trust, when fully funded, contains an amount equal to the sum of the cost estimates established pursuant to sections 383-6.6, 383-6.7, and 383-6.8 of this Part;

(ii) adjust the pay-in amount within 30 days of the date the expenditure was made; and

(iii) upon adjustment of the pay-in amount notify the department and permittee of the revised pay-in amount. The revised pay-in amount is subject to approval of the department.

(6) If expenditures are made during the operation period from the Remedial Action/Third-Party Compensation Trust (Operation, Closure, and Post-Closure Periods), the trustee must:

(i) adjust the pay-in amount to ensure that the trust, when fully funded, contains an amount equal to the financial assurance requirements established for such trust by sections 383-6.9(a) and 383-6.10(a) of this Part;

(ii) adjust the pay-in amount within 30 days of the date the expenditure was made; and

(iii) upon adjustment of the pay-in amount notify the department and the permittee of the revised pay-in amount. The revised pay-in amount is subject to approval by the department.

(d) Payments into the trusts.

(1) The department must establish and provide written notice to the permittee of the amount each fully funded trust must contain. The department must specify this amount in the permit, subject to the permit modification procedures of this Title.

(2) The department will establish the amount that each fully funded trust must contain based on:

(i) the cost estimates approved by the department and provided pursuant to sections 383-6.6, 383-6.7, and 383-6.8 of this Part; and

(ii) the coverage requirements of sections 383-6.9 and 383-6.10 of this Part.

(3) The permittee must make payments into the trusts of the LLRW Fund. The amount of such payments must be at least equal to the amount calculated by the trustee(s) of the trusts, established by subdivision 383-6.4(a) of this section, in accordance with the requirements of subdivision 383-6.4(c) of this section.

(e) Payments from the trusts.

(1) Payments for Implementation of the Closure Plan, Post-Closure Plan, and Institutional Control Plan.

(i) The permittee may request reimbursement for the costs of implementing the closure plan, the post-closure plan, and the institutional control plan.

('a') Reimbursement requests must be submitted to the trustee of the Closure, Post-Closure, and Institutional Control Trust, with a copy to the department.

('b') Within 60 days after receiving a copy of the reimbursement request for costs of implementing the closure, post-closure and/or institutional control plans, the commissioner will instruct the trustee of the Closure, Post-Closure, and Institutional Control Trust to make reimbursements in those amounts the commissioner specifies in writing, if the commissioner determines that the expenditures are in accordance with the approved closure, post-closure, or institutional control plan, or otherwise justified. If the commissioner does not instruct the trustee to make reimbursement, the commissioner will provide the permittee with a detailed written statement of reasons.

('c') The trustee must issue payments only upon receipt of a written determination from the department:

('1') specifying the amount of such payment;

('2') certifying that the activities for which the permittee is seeking payment were executed in accordance with the approved closure plan, post-closure plan, or institutional control plan; and

('3') verifying that any other applicable terms and conditions of the permit have been met.

('d') Payments to the permittee for the costs of implementing the closure plan, post-closure plan, or institutional control plan must be made only from the Closure, Post-Closure, and Institutional Control Trust.

(2) Payments for the Costs of Remediation of Failures.

(i) The permittee may request reimbursement for the costs of remedial action during the operation, closure, or post-closure periods.

('a') Reimbursement requests must be submitted to the trustee of the Remedial Action/Third-Party Compensation Trust (Operation, Closure, and Post-Closure Periods), with a copy to the department.

('b') Within 60 days after receiving a copy of the reimbursement request for costs of remedial action during the operation, closure or post-closure periods the commissioner will instruct the trustee of the Remedial Action/Third-Party Compensation Trust (Operation, Closure, and Post-Closure Periods) to make reimbursements in those amounts the commissioner specifies in writing, if the commissioner determines that the expenditures are for activities completed to the satisfaction of the department, or otherwise justified. If the commissioner does not instruct the trustee to make reimbursement, the commissioner will provide the permittee with a detailed written statement of reasons.

('c') The trustee must issue payments only upon receipt of a written determination from the department:

('1') specifying the amount of such payment; and

('2') certifying that the activities for which the permittee is seeking payment were completed to the satisfaction of the department.

('d') Payments to the permittee for the costs of remedial action during the operation, closure, or post-closure periods must be made only from the Remedial Action/Third-Party Compensation Trust (Operation, Closure, and Post-Closure Periods).

(ii) The permittee may request reimbursement for the costs of remedial action during the institutional control period.

('a') Reimbursement requests must be submitted to the trustee of the Remedial Action/Third-Party Compensation Trust (Institutional Control Period), with a copy to the department.

('b') Within 60 days after receiving a copy of the reimbursement request for costs of remedial action during the operation, closure or post-closure periods the commissioner will instruct the trustee of the Remedial Action/Third-Party Compensation Trust (Institutional Control Periods) to make reimbursements in those amounts the commissioner specifies in writing, if the commissioner determines that the expenditures are for activities completed to the satisfaction of the department, or otherwise justified. If the commissioner does not instruct the trustee to make reimbursement, the commissioner will provide the permittee with a detailed written statement of reasons.

('c') The trustee must issue payments only upon receipt of a written determination from the department:

('1') specifying the amount of such payment; and

('2') certifying that the activities for which the permittee is seeking payment were completed to the satisfaction of the department.

('d') Payments to the permittee for the costs of remedial action during the operation, closure, or post-closure periods must be made only from the Remedial Action/Third-Party Compensation Trust (Institutional Control Period).

(3) Payments for the Costs of Third-Party Compensation.

(i) The permittee may request reimbursement for the costs of judgements, settlements, or releases of third party claims for which a settlement or release has been entered into or an action has commenced during the operation, closure, or post-closure periods.

('a') Reimbursement requests must be submitted to the trustee of the Remedial Action/Third-Party Compensation Trust (Operation, Closure, and Post-Closure Periods), with a copy to the department.

('b') The trustee must release payment for such expenditures only upon receipt of the documentation required by the terms of the trust agreement.

('c') Payments for the costs of third party judgments, settlements, or releases during the operation period, closure period, or post- closure period must be made only from the Remedial Action/Third-Party Compensation Trust (Operation, Closure, and Post-Closure Periods).

(ii) The permittee may request reimbursement for the costs of judgements, settlements, or releases of third party claims for which a settlement or release has been entered into or an action has been commenced during the institutional control period.

('a') Reimbursement requests must be submitted to the trustee of the Remedial Action/Third-Party Compensation Trust (Institutional Control Period).

('b') The trustee must approve payments for such expenditures upon receipt of the documentation required by the terms of the trust agreement.

('c') Payments for the costs of third party judgments, settlements, or releases during the institutional control period during the institutional control period must be made only from the Remedial Action/Third-Party Compensation Trust (Institutional Control Period).

(f) General restrictions.

(1) The assets of any of the trusts established pursuant to subdivision 383-6.4(a) of this section may not be used to pay legal defense costs of the permittee for claims against the permittee arising out of the operation of the land disposal facility.

(2) Except as provided by paragraph 383-6.4(c)(4) of this section, the transfer of assets between or among any such trusts established pursuant to subdivision 383-6.4(a) of this section is prohibited.

§383-6.5 Alternate Financial Assurance Instruments.

(a) The permittee must provide alternate financial assurance methods or instruments for the difference between:

(1) the sum of the cost estimates for implementing the closure plan, the post-closure plan, and the institutional control plan, and

(2) the amount currently in the Closure, Post-Closure, and Institutional Control Trust.

(b) The permittee must provide such alternate financial assurance methods or instruments until the trustee of the Closure, Post-Closure, and Institutional Control Trust states in writing and demonstrates to the satisfaction of the department that such trust is fully funded in the amounts required by sections 383-6.6 through 383-6.8 of this Part.

(c) The permittee must provide alternate financial assurance methods or instruments for the difference between:

(1) the amount currently in the Remedial Action/Third-Party Compensation Trust (Operation, Closure, and Post-Closure Periods), and

(2) the coverage amounts required by sections 383-6.9(a) and 383-6.10(a) of this Part.

(d) The permittee must provide such alternate financial assurance methods or instruments until the trustee of the Remedial Action/Third-Party Compensation Trust (Operation, Closure, and Post-Closure Periods) states in writing and demonstrates to the satisfaction of the department that such trust is fully funded in the amounts required pursuant to sections 383-6.9(a) and 383-6.10(a) of this Part.

(e) The permittee must provide alternate financial assurance methods or instruments for the difference between:

(1) the amount currently in the Remedial Action/Third-Party Compensation Trust (Institutional Control Period), and

(2) the amounts established pursuant to sections 383-6.9(b) and 383-6.10(b) of this Part.

(f) The permittee must provide such alternate financial assurance methods or instruments until the trustee of the Remedial Action/Third-Party Compensation Trust (Institutional Control Period) states in writing and demonstrates to the satisfaction of the department that such trust is fully funded in the amounts required pursuant to sections 383-6.9(b) and 383-6.10(b) of this Part.

(g) The permittee must submit documentation to the department demonstrating that the alternate financial assurance methods or instruments have been obtained. This documentation, including copies of the executed alternate coverage instruments, must be submitted within 5 days of the day the permittee obtained the financial assurance method or instrument.

(h) The language of all financial methods or instruments submitted by the permittee, except for alternate trusts and liability insurance, must include provisions providing that any funds drawn under the financial method or instrument must be paid by the issuer making payment directly into that trust or trusts established pursuant to section 383-6.4(a) of this Part covering the purpose for which the alternate financial assurance method or instrument was established.

(i) Within 60 days after the department approves an adjustment or revision to the financial assurance plan in accordance with sections 383-6.3(e) or (f) of this Part, the permittee must adjust the amounts of the financial assurance instruments to reflect the adjustments to the financial assurance plan.

(j) After establishing one or more financial assurance methods or instruments, the permittee must notify the department in writing at least 90 days in advance of the cancellation or amendment of such methods or instruments, and no such cancellation or amendment may be executed without prior written approval of the department.

(k) Cancellation or non-renewal.

(1) The duration of financial assurance methods or instruments, provided by the permittee for compliance with this Part must be open ended unless:

(i) either the permittee or the provider of the instrument agrees in writing to substitute an alternate financial assurance instrument, and;

(ii) the substitute instrument is in an amount equivalent to the financial assurance method or instrument which either the permittee or the provider is seeking to terminate.

(2) Renewal of financial assurance methods or instruments must be automatic, unless the provider of the financial assurance method or instrument send written notice of the intention not to renew to:

(i) the permittee, the department, and the trustee(s) of the trust(s) for which instrument(s) are providing alternate financial assurance, and

(ii) sends such notice not less than 90 days prior to the renewal date. If the permittee fails to obtain a replacement financial method or instrument within 60 days of notification by the provider, the provider must provide funds, up to the full amount of the financial assurance method or instrument, to the trustee of the trusts established by section 383-6.4 of this Part, as directed by the department.

(3) The requirements of this subdivision do not apply to liability insurance.

(l) Proof of Forfeiture.

(1) The permittee must establish alternate financial assurance methods or instruments and obtain written approval of such alternate financial assurance methods or instruments from the department within 60 days after the permittee receives a non-renewal notice from the provider.

(2) In the event that the permittee does not obtain alternate financial assurance methods or instruments within such 60 day period, the provider of the alternate financial assurance method or instrument must automatically provide funds, up to the full amount of the financial assurance method or instrument, to the trustee(s) of the trusts established by section 383-6.4 of this Part, as directed by the department.

(3) Proof of forfeiture must not be necessary to collect on the financial assurance method or instrument.

(4) The requirements of this subdivision do not apply to liability insurance.

(m) Allowable Financial Assurance Methods or Instruments.

Upon the approval of the department, a permittee may use one or more of the financial assurance methods or instruments specified in paragraphs (1) through (5) of this subdivision to meet the requirements of this section.

(1) Alternate Trust. The permittee may obtain alternate coverage required by this Part through the use of an alternate trust that conforms to the requirements of this paragraph and section 383-6.12(a) of this Part. The executed alternate agreement must be submitted to the trustee(s) of the trust(s) established by section 383-6.4 of this Part for which the alternate trust is providing alternate coverage.

(i) The permittee must submit an executed alternate trust agreement to the trustee of the trust for which the alternate trust is providing alternate coverage and an originally signed duplicate to the department. If the alternate trust is used as part of the financial assurance plan in effect before the operation period, the alternate trust must be in effect at least 60 days prior to initial receipt of waste at the land disposal facility.

(ii) A trust used as an alternate financial method or instrument must be funded, at the time the alternate trust agreement is executed, for the full amount of the difference between:

('a') the amount determined pursuant to sections 383-6.6 through 383-6.8 and sections 383-6.9 and 383-6.10 of this Part, and the amount held in the trusts established pursuant to section 383-6.4(a) of this Part, or

('b') the amount held in such trusts established pursuant to section 383-6.4(a) and the amount provided by such alternate financial assurance methods or instruments established pursuant to subdivision 383-6.5(m) of this section.

(iii) The alternate trust must be funded by a single lump-sum payment by the permittee into the alternate trust at the time the alternate trust agreement becomes effective.

(iv) The alternate trust agreement must be identical to the wording required by section 383-6.12(a) of this Part and must be accompanied by a formal acknowledgment.

(v) The permittee must appoint the trustee to supervise and manage the alternate trust. The appointment of the initial, and any subsequent, trustee is subject to the prior written approval of the department. The trustee(s) of the alternate trust(s) must be an entity that has the authority to act as a trustee and whose trust operations are regulated by a federal or state agency. The trustee's duties are limited to the duties set forth in the trust instrument required pursuant to section 383-6.12(a) of this Part.

(vi) Following a determination by the department that funds are required for purposes for which the alternate trust guarantees funds, the trustee(s) of the alternate trust(s) must provide such funds to the trustee(s) of the trust(s) established pursuant to section 383-6.4(a) of this Part, as directed by the department.

(vii) If expenditures are made from the alternate trust, the trustee of each such trust must:

('a') calculate the revised value of the alternate trust;

('b') send written notification of the revised amount to the permittee, the department, and the trustee(s) of the trust(s), established pursuant to section 383-6.4(a) of this Part, for which the alternate trust provides alternate financial assurance; and

('c') send such notification within 30 days of the time such funds are paid.

(viii) The permittee may terminate the alternate trust provided the department has given its prior written consent based on receipt of documents from the permittee of alternate financial assurance as required by subdivision 383-6.5(k) of this section. After the department certifies in writing that the financial assurance for which the alternate trust was created is no longer necessary, the trustee(s) of the alternate trust must transfer any funds remaining in the trust to the permittee.

(2) Surety Bond. A permittee may obtain alternate coverage required by this Part through the use of performance surety bonds or payment surety bonds. A performance surety bond may be used only to provide alternate coverage for implementation of the closure plan, post-closure plan, and institutional control plan. A payment surety bond may be used to provide alternate coverage for implementation of the closure plan, post closure plan, and institutional control plan, and/or coverage required by sections 383-6.9 and 383-6.10 of this Part for remediation of failures and third party compensation.

(i) A surety bond must conform to the requirements of this paragraph and section 383-6.12(b) or (c) of this Part. The permittee must submit the surety bond to the trustee(s) of the trust(s) for which the surety bond is providing alternate coverage and an originally signed duplicate to the department. If the surety bond is used as part of the financial assurance plan in effect before the operation period, the surety bond must be in effect at least 60 days prior to the initial receipt of waste by the land disposal facility. The surety company issuing the surety bond must, at a minimum, be among those listed as acceptable sureties on federal surety bonds in Circular 570 of the U.S. Department of the Treasury.

(ii) The wording of the surety bond must be identical to the wording specified by section 383-6.12(b) or (c) of this Part.

(iii) The payment surety bond must guarantee that if the permittee fails to fulfill any of the obligations, established pursuant to this Part, for which the payment bond guarantees funds, then the surety must provide funds, up to the amount of the penal sum of the bond, to the trustee(s) of the trusts established by section 383-6.4, as directed by the department.

(iv) The performance surety bond must guarantee that the surety will:

('a') perform the activities specified by the closure plan, post-closure plan, and/or institutional control plan if the permittee fails to perform the activities specified by the closure plan, the post-closure plan, or the institutional control plan; or

('b') make payments to the trustee(s) of the trust(s) established by section 383-6.4 of this Part, as directed by the department in writing, up to an amount equal to the penal sum of the performance surety bond. Following a determination by the department that the permittee has not implemented the closure plan, post-closure plan, or institutional control plan, the surety must undertake the required performance, or provide funds to the trustee of the Closure, Post-Closure and Institutional Trust, as directed by the department, to pay for the necessary performance, up to the amount of the penal sum of the performance surety bond.

(v) The penal sum of the surety bond, when combined with funds in the trust(s) established pursuant to section 383-6.4(a) of this Part for which the surety bond is providing alternate coverage and any other financial assurance method or instrument which guarantees funds to such trust, must be at least equal to the amount required pursuant to section 383-6.4(d) of this Part.

(vi) Under the terms of the surety bond, the surety may cancel the surety bond by sending notice of cancellation by certified mail, return receipt requested, to the permittee, the department, and the trustee(s) of the trust(s) for which the surety is providing alternate coverage not less than 90 days prior to the renewal date for the surety bond.

('a') The surety must not cancel the surety bond unless the permittee has:

('1') obtained alternate financial assurance methods or instruments;

('2') received approval from the department for such financial assurance methods or instruments in accordance with sections 383-6.5(j) and (k) of this Part; and

('3') met the above requirements of subclauses ('1') and ('2') of this subparagraph no later than 30 days after the permittee received notice of cancellation.

('b') If the permittee fails to obtain an alternate financial assurance method or instrument acceptable to the department in accordance with subdivision 383-6.5(j) and(k) of this section, then the surety must provide funds, up to the amount of the penal sum of the bond, to the trustee(s) of the trust(s) established by section 383-6.4 of this Part, as directed by the department.

(vii) The permittee may cancel the surety bond if the department has given prior written consent based on receipt of documentation from the permittee of an alternate financial assurance method or instrument as required by subdivision 383-6.5 (j) and (k) of this section.

(3) Letter of credit. A permittee may obtain alternate coverage required by this Part through the use of an irrevocable standby letter of credit that conforms to the requirements of this paragraph and section 383-6.12(d) of this Part.

(i) The permittee must submit the letter of credit to the trustee(s) of the trust(s) for which the letter of credit is providing alternate coverage and an originally signed duplicate to the department. If the letter of credit is used as part of the financial assurance plan in effect before the operation period, the letter of credit must be in effect at least 60 days prior to the initial receipt of waste by the land disposal facility. The institution issuing the letter of credit must be an entity that has the authority to issue letters of credit and whose letter of credit operations are regulated and examined by a federal or state agency.

(ii) The wording of the letter of credit must be identical to the wording required by section 383-6.12(f) of this Part.

(iii) The firm issuing the letter of credit must hold a rating in one of the three highest rating grades (i.e., within the A range) as determined by a nationally recognized independent rating agency (e.g., Moody's, Standard and Poor's).

(iv) The letter of credit must be accompanied by a letter from the permittee which:

('a') identifies the letter of credit by number, issuing institution, and date; and

('b') states the name and address of the land disposal facility, and the amount of funds assured by the letter of credit.

(v) The letter of credit must be irrevocable and issued for a period of at least one year. The letter of credit must provide that the expiration date will be automatically extended for a period of at least one year unless the issuing institution decides not to extend the expiration date and sends notice of that decision by certified mail, return receipt requested:

('a') to the permittee, the department, and the trustee(s) of the trust(s) for which the letter of credit is providing alternate coverage, and

('b') within at least 90 days before the current expiration date. Under the terms of the letter of credit, the 90 days will begin on the date when the permittee, the department, and the trustee(s) of the trust(s) for which the letter of credit is providing alternate coverage have received the notice, as evidenced by the return receipts.

(vi) The permittee must establish alternate financial assurance methods or instruments as required by subdivisions 383-6.5 (j) and (k) of this section and obtain written approval of such alternate financial assurance instruments from the department within 60 days after receipt of a notice from the issuing institution of a decision not to extend the expiration date of the letter of credit.

(vii) If the permittee does not obtain alternate financial methods or instruments within such 60 day period, the issuing institution must provide funds, up to the aggregate amount of the letter of credit, to the trustee(s) of the trusts established by section 383-6.4 of this Part, as directed by the department. The department may delay this required transfer of funds if the issuing institution grants in writing an extension of the term of the letter of credit. During the last 30 days of any such extension, the department may draw on the letter of credit if the permittee has failed to establish alternate financial assurance methods or instruments as required by subdivisions 383-6.5(j) and (k) of this section and has failed to obtain written approval of such alternate financial assurance methods or instruments from the department.

(viii) Following a determination by the department that funds are required for purposes of which the letter of credit guarantees funds, the issuing institution must provide such funds, up to the aggregate amount of the letter of credit, to the trustee(s) of the trust(s) established by section 383-6.4 of this Part, as directed by the department.

(ix) The department must direct the trustee(s) of the trust(s) for which the letter of credit is providing alternate financial assurance to return the letter of credit to the issuing institution for termination when a permittee substitutes alternate financial methods or instruments as required by subdivisions 383-6.5(j) and (k) of this section.

(4) Liability insurance. A permittee may obtain alternate coverage required by the Part for remediation of failures or personal injury and property damage to third parties caused by the operation of the land disposal facility through the use of liability insurance that conforms to the requirements of this paragraph and section 383-6.12(e) of this Part. The permittee must submit such insurance policy and certificate of insurance to the trustee(s) of the trust for which the insurance policy is providing alternate coverage and an originally signed duplicate of each to the department. The permittee may use liability insurance only for coverage of remediation of failures and for personal injury and property damage to third parties caused by the operation of the land disposal facility.

(i) A permittee must submit the certificate of insurance required by subdivision 383-6.12(e) of this Part and a copy of the liability insurance policy to the trustee(s) of the trust(s) for which the liability insurance is providing alternate coverage and an originally signed duplicate to the department. If the liability insurance is used as part of the financial assurance plan in effect before the operation period, the liability insurance policy must be in effect at least 60 days prior to the initial receipt of waste by the land disposal facility. At a minimum, the insurer must be authorized by the Superintendent of the New York State Insurance Department to conduct the business of insurance, or eligible to provide insurance as an excess or surplus lines insurer in New York State.

(ii) The insurance policy must be issued for a limit of liability at least equal to the coverage amount required by sections 383-6.9 and 383-6.10 of this Part, except as provided in subdivision 383-6.5(n) of this section.

(iii) The liability insurance policy must guarantee that funds will be available immediately upon determination that a valid claim has been presented to provide payments up to an amount equal to the limits of liability.

(iv) The permittee must maintain the policy in full force and effect until the department consents to termination of the policy by the permittee. The permittee must pay all premiums when due and perform all other actions necessary to maintain the insurance policy in full force and effect. Failure to pay the premium, without substitution of alternate financial methods or instruments, constitutes a violation of these regulations. Such violation shall be deemed to begin upon receipt by the department of notice of future cancellation, termination, or failure to renew due to nonpayment of the premium, rather than upon the expiration date of the insurance policy.

(v) The liability policy must provide that the insurer may not cancel, terminate, or fail to renew the policy except for the permittee's failure to pay the premium. The automatic renewal of the policy must, at a minimum, provide the insured with the option of renewal at the limits of liability of the expiring policy. If the permittee fails to pay the premium, the insurer may elect to cancel, terminate, or fail to renew the policy by sending notice by certified mail, return receipt requested, to the permittee, the department, and the trustee(s) of the trust(s) for which the insurance policy is providing alternate financial assurance. Cancellation, termination, or failure to renew may not occur during the 120 days beginning with the date of receipt of the notice by the permittee, the department, and the trustee(s), of the trust(s) for which the insurance policy is providing alternate financial assurance, as evidenced by the return receipts. Cancellation, termination, or failure to renew must not occur and the policy must remain in full force and effect in the event that on or before the expiration date of the insurance policy:

('a') the department determines that the land disposal facility has been abandoned; or

('b') the permit issued by the department is terminated or revoked or a permit renewal is denied; or

('c') closure is ordered by the department, any other agency with regulatory jurisdiction over the land disposal facility, or a court of competent jurisdiction;

('d') the premium due is paid; or

('e') the permittee is named as a debtor in a voluntary or involuntary bankruptcy proceeding.

(vi) The permittee must obtain written approval from the department to terminate the insurance policy when the permittee substitutes an alternate financial assurance method or instrument as required by subdivisions 383-6.5 (j) and (k) of this section.

(5) Guarantee. The permittee may obtain alternate coverage required by this Part through the use of a written guarantee that conforms to the requirements of this paragraph and section 383-6.12(f) of this Part.

(i) The permittee must submit such guarantee to the trustee(s) of the trust(s) for which the guarantee is providing alternate assurance and an originally signed duplicate to the department. If the guarantee is used as part of the financial assurance plan in effect before the operation period, the guarantee must be in effect at least 60 days prior to initial receipt of waste at the land disposal facility.

(ii) The guarantor may be a corporate or other legal or financial affiliate of the permittee.

(iii) A guarantor must provide proof that it is capable of providing the financial assurances being guaranteed on behalf of the permittee by submitting documentation to the department containing information sufficient to allow the department to evaluate the suitability of the guarantee as an alternate financial assurance method or instrument. The information must include, but is not limited to:

('a') name, address, partnerships (and proportion of ownership) and state of incorporation of the firm seeking to provide the guarantee, the form of its business organization, and the guarantor's business relationship to the facility owner or operator (such as "subsidiary," "affiliate," etc.);

('b') copy of the applicant's articles of incorporation and bylaws or other similar documents, if the applicant is not an individual (e.g., corporation);

('c') past experience as a guarantor, including whether the guarantor has ever qualified as a guarantor in any state, whether such authority has ever been revoked, whether the guarantor has ever defaulted on any previous guarantees, and whether an application to act as a guarantor has ever been denied;

('d') copies of any guarantees provided to the proposed guarantor by any parent or holding companies of the proposed guarantor regarding the project;

('e') details concerning the guarantor's past and present insurance coverage;

('f') rationale for the applicant to act as guarantor, including but not limited to cost savings;

('g') balance sheets, income and profit and loss statements of the guarantor prepared by an independent certified public accountant;

('h') information concerning reserves, guarantees, or other support for the guarantee;

('i') information concerning legal authorization or power to provide a guarantee;

('j') copies of the last three years of any rating of the applicant's firm by a bond rating service (e.g., Moody's or Standard and Poor's);

('k') description of any litigation involving the guarantor that may have a negative economic impact on its operations;

('l') information concerning authorization by stockholders, directors, or other firm owners of power to provide the guarantee; and

('m') any other information required by the department at the time of application.

(iv) The guarantee must be identical to the wording required by section 383-6.12(d) of this Part. The terms of the guarantee must provide that:

('a') if the permittee fails to implement the closure plan, the post-closure plan, or the institutional control plan, in accordance with the directions of the department whenever required to do so, the guarantor must provide funds, up to the full amount of the guarantee, to the trustee(s) of the trusts established by section 383-6.4 of this Part, as directed by the department; and/or

('b') if the permittee fails to remediate failures or to compensate third parties for judgments, releases, or settlements for personal injury or for property damage caused by the operation of the land disposal facility to which the guarantee applies, the guarantor must provide funds, up to the full amount of the guarantee, to the trustee(s) of the trust(s) established by section 383-6.4 of this Part, as directed by the department.

('c') under the terms of the guarantee, the guarantor may cancel the guarantee by sending notice of cancellation by certified mail, return receipt requested to the permittee, the department, and the trustee(s) of the trust(s) for which the guarantee is providing alternate financial assurance. Cancellation must not occur, however, during the 90 days beginning on the date of receipt of the notice of cancellation by the permittee, the department, and the trustee(s) of the trust(s) for which the guarantee is providing alternate financial assurance.

('d') The guarantor must provide up to the full amount of the guarantee:

('1') alternate financial assurance instrument(s) in the name of the permittee, or

('2') funds to the trustee(s) of the trust(s) established by section 383-6.4 of this Part, as directed by the department in the event that:

('i') the permittee fails to provide alternate financial assurance methods or instruments as required by subdivisions 383-6.5(j) and (k) of this section;

('ii') obtain the written approval of such alternate financial assurance methods or instruments from the department and;

('iii') obtain such approval within 60 days after receipt of a notice of cancellation by the permittee, the department, and trustee(s) of the trust(s) for which the guarantee is providing alternate financial assurance.

(v) The department may require the guarantor to submit reports of its financial condition at any time. If the department finds, on the basis of such reports or other information, that the guarantor no longer is capable of providing the financial assurance guaranteed, the permittee must, within 30 days after notification by the department of such a finding, provide alternate financial assurance method(s) or instrument(s) as required by subdivision 383-6.5(j) and (k) of this section, and obtain written approval of such alternate financial method(s) or instrument(s) from the department.

(vi) The department may determine that the guarantor fails to meet the requirements of this subsection on the basis of qualifications in an opinion expressed in a report of an independent certified public accountant on examination of the guarantor's financial statements. An adverse opinion or a disclaimer of opinion will be cause for such a determination. The department may evaluate other qualifications on an individual basis.

(vii) The permittee may cancel the guarantee if the department has given prior written consent based on receipt of documentation from the permittee of an alternate financial method or instrument as required by subdivision 383-6.5 (j) and (k) of this section.

(n) Use of multiple alternate financial instruments.

(1) A permittee may satisfy the requirements of this section by establishing more than one alternate financial instrument to guarantee costs or expenses of:

(i) implementing the closure plan, post-closure plan, and/or institutional control plan;

(ii) remedial action; and/or

(iii) third party compensation for personal injury and/or property damage caused by the operation of the land disposal facility.

(2) The permittee may combine only trusts, surety bonds, letters of credit, liability insurance, and guarantees that conform to the requirements of this section, except that the combination of financial methods or instruments, rather than a single financial method or instrument, must provide financial assurance for an amount at least equal to the requirements of sections 383-6.5(a), (c), and (e) of this Part.

§383-6.6 Cost Estimates for Implementing the Closure Plan.

(a) Every applicant or permittee must submit a detailed, written estimate of the cost, in current dollars, for implementing the closure plan as required by section 383-6.3(b)(2)(i) of this Part. The cost estimate must be approved by the department and based on the cost of implementing the closure plan as approved or amended by the terms and conditions of the permit. The cost estimate must include the costs of:

(1) decontamination and dismantlement of land disposal facility structures; and

(2) closure of the land disposal facility so that the need for ongoing active maintenance is eliminated to the extent practicable and only minor custodial care, surveillance, and monitoring are required;

(3) implementation of the closure plan based on the costs of hiring a third party to implement the closure plan; and

(4) implementation of the closure plan reflecting the costs of closure at the estimated point in the land disposal facility's operation period when the extent and manner of operation and inventory of wastes would make closure the most expensive, as indicated by the closure plan.

(b) The cost estimate must not incorporate any salvage value that may be realized from the sale of wastes, land disposal facility structures, equipment, land, or other assets associated with the land disposal facility at the time of closure.

(c) The cost estimate must reflect consideration of the size, type, and location of the land disposal facility and the nature and volume of waste to be disposed, any portion of the closure plan which has been completed, and the degree and duration of risk to human health and the environment.

(d) The permittee must submit a revised cost estimate to the department no later than 30 days after the department has approved a change in the closure plan that affects the cost of implementing the closure plan. The department may require the permittee to submit a revised financial assurance plan, in accordance with section 383-6.3(f) of this Part, which reflects such revised cost estimate.

(e) On an annual basis, until closure of the land disposal facility, the permittee must revise the estimated cost to account for inflation. The revised cost estimate must be submitted to the department in accordance with the requirements of section 383-6.3(d) of this Part.

§383-6.7 Cost Estimates for Implementing the Post-Closure Plan.

(a) Every applicant or permittee must submit to the department a detailed written estimate of the cost, in current dollars, for implementing the post-closure plan as required by section 383-6.3(b)(2)(ii) of this Part. The cost estimate must be based on the cost of implementing the post-closure plan as approved or amended by the terms and conditions of the permit. The cost estimate must include the costs of the permittee hiring a third party to implement the post-closure plan.

(b) The cost estimate for implementing the post-closure plan must reflect consideration of the size, type, and location of the land disposal facility and the nature and volume of waste to be disposed.

(c) The permittee must submit a revised cost estimate to the department no later than 30 days after the department has approved a change in the post-closure plan that affects the cost of implementing the post-closure plan. The department may require the permittee to submit a revised financial assurance plan, in accordance with section 383-6.3(f) of this Part, which reflects such revised cost estimate.

(d) On an annual basis, until closure of the land disposal facility, the permittee must revise the estimated cost for implementation of the post-closure plan to account for inflation. This revised cost estimate must be submitted to the department in accordance with section 383-6.3(d) of this Part.

§383-6.8 Cost Estimates for Implementing the Institutional Control Plan.

(a) Every applicant or permittee must submit to the department a detailed written estimate of the cost, in current dollars, for implementing the institutional control plan as required by section 383-6.3(b)(2)(iii) of this Part. The cost estimate must be based on the cost of implementing the institutional control plan as approved or amended by the terms and conditions of the permit. The cost estimate must include the costs of the permittee hiring a third party to implement the institutional control plan.

(b) The cost estimate for implementing the institutional control plan must reflect consideration of the size, type, and location of the land disposal facility and the nature and volume of waste to be disposed.

(c) The permittee must submit a revised cost estimate for implementing the institutional control plan to the department no later than 30 days after the department has approved a change in the institutional control plan that affects the cost of implementing the institutional control plan. The department may require the permittee to submit a revised financial assurance plan, in accordance with section 383-6.3(f) of this Part, which reflects such revised cost estimate.

(d) On an annual basis, until closure of the land disposal facility, the permittee must revise the estimated cost for implementing the institutional control plan to account for inflation. This revised cost estimate must be submitted to the department in accordance with section 383-6.3(d) of this Part.

§383-6.9 Coverage Requirements for Remediation of Failures.

(a) Proposed coverage requirements. The applicant must submit as part of a complete permit application proposed levels of coverage for the costs of remediation of failures during the operation, closure, post-closure, and institutional control periods.

(1) The applicant must provide the following documentation:

(i) the methodologies employed and a detailed explanation of the rationale used to select the proposed levels;

(ii) an evaluation of the potential for remediation costs as a result of operation of the land disposal facility including an analysis of the probability and magnitude of these costs and the likelihood of exceedence of the proposed costs; and

(iii) evidence that the proposed levels reflect the most recent cost data available, adjusted for inflation, where appropriate.

(2) The applicant's evaluation of the potential costs for remediation of failures must consider:

(i) an analysis of the land disposal facility location including natural site characteristics such as the geologic, geotechnical, hydrologic, meteorologic, climatologic and biotic features of the land disposal facility location and vicinity;

(ii) an analysis of the demographic site characteristics including population distribution, sensitive areas (including but not limited to hospitals, parks, and schools), and existing and potential land use in the vicinity of the land disposal facility;

(iii) the disposal technology including the final design plans and specifications of the land disposal facility;

(iv) the types and concentrations of radionuclides and the quantities of waste to be located at the land disposal facility;

(v) an analysis of probability and consequences of accidental scenarios including but not limited to, explosion, fire, vehicular accidents, and processing accidents, which may result in remediation costs;

(vi) an analysis of major natural phenomena which may result in remediation costs;

(vii) an analysis of impacts due to inadvertent intrusion; and

(viii) the proposed time period of operations.

(3) The applicant's evaluation of the potential costs for remediation of failures must rely upon:

(i) location-specific and disposal technology-specific performance assessment modelling;

(ii) location-specific and disposal technology-specific dose assessment modelling;

(iii) risk assessment of the major events or phenomena which may affect cost;

(iv) as assessment of expected radiological exposures and doses due to potential accidents or major events or phenomena or waste processing during the land disposal facility life;

(v) an assessment of the potential health effects (including stochastic and non-stochastic effects) resulting from such exposures and doses which must reflect current data concerning the biological effects of ionizing radiation; and

(vi) computer-based mathematical models. The applicant must submit detailed explanations of all calculations performed and details of all models used, including all assumptions and algorithms to the satisfaction of the department.

(4) The applicant must demonstrate to the satisfaction of the department that the coverage levels reflect due consideration of: the sizes and locations of affected facilities; the nature and volume of the low-level radioactive waste involved; the types of facilities and the degrees and durations of risk to human health and the environment; and the protection of public health and safety and the environment.

(b) Coverage Requirements During the Operation, Closure, and Post-Closure Period. Every applicant or permittee must establish and maintain financial assurance as required by section 383-6.3(a)(3) of this Part in at least the amount of coverage approved by the commissioner pursuant to section 383-6.9(a) of this Part to ensure the remediation of failures during the operation, closure, and post-closure periods of the land disposal facility. Every applicant and permittee must submit proof of such financial assurance to the department as required by sections 383-6.3(b)(3) and 383-6.3(d) of this Part.

(c) Coverage Requirements During the Institutional Control Period. Every applicant or permittee must establish and maintain financial assurance as required by section 383-6.3(a)(3) of this Part in at least the amount of coverage approved by the commissioner pursuant to section 383-6.9(a) of this Part to ensure the remediation of failures during the institutional control period of the land disposal facility. Every applicant or permittee must submit proof of such financial assurance to the department as required by sections 383-6.3(b)(4) and 383-6.3(d) of this Part.

(d) Requirements for Reassessing Degree and Duration of Risk.

(1) During the operation, closure, and post-closure periods of the land disposal facility the permittee must notify the department of any circumstances or events which may impact financial assurance coverage levels. Within thirty days of the discovery of such circumstance or occurrence of such event, the permittee must submit to the department, in writing, an assessment and report of any changes in the degree and duration of risk to human health and the environment created by the circumstance or event.

(2) The department may require the permittee to submit any additional information necessary to determine if the amount of financial assurance required for remediation of failures must be adjusted as a result of the circumstance or event.

(e) Adjusting the Coverage Requirements.

(1) During the pre-closure period of the land disposal facility, the department may adjust the amount of financial assurance the permittee must provide for remediation of failures if the amount of financial assurance required by subdivisions (b) or (c) of this section does not reflect the current degree and duration of risk to human health and the environment presented by the land disposal facility.

(2) During the pre-closure period the department may adjust the amount of financial assurance required for remediation of failures to account for inflation.

§383-6.10 Coverage Requirements for Third-Party Compensation.

(a) Proposed Coverage Requirements. The applicant must submit as part of a complete permit application proposed levels of coverage for compensation for personal injury and property damage to third parties from accidents caused by the operation of the land disposal facility during the operation, closure, post-closure, and institutional control periods of the land disposal facility.

(1) The applicant must provide the following documentation:

(i) the methodologies employed and a detailed explanation of the rationale used to select the proposed levels;

(ii) an evaluation of the potential for costs of compensation to third parties for personal injury and property damage resulting from operation of the land disposal facility including an analysis of the probability and magnitude of these costs and the likelihood of exceedence of the proposed costs; and

(iii) evidence that the proposed levels reflect the most recent cost data available, adjusted for inflation, where appropriate.

(2) The applicant's evaluation of potential costs for compensation of personal injury and property damage to third parties must consider:

(i) an analysis of the land disposal facility location including natural site characteristics such as the geologic, geotechnical, hydrologic, meteorologic, climatologic, and biotic features of the land disposal facility location and vicinity;

(ii) an analysis of the demographic site characteristics including population distribution, sensitive areas (including but not limited to hospitals, parks, and schools), and existing and potential land use in the vicinity of the land disposal facility;

(iii) the disposal technology including the final design plans and specifications of the land disposal facility;

(iv) the types and concentrations of radionuclides and the quantities of waste, and its packaging to be located at the land disposal facility;

(v) an analysis of probability and consequences of accidental scenarios including but not limited to, explosion, fire, vehicular accidents, and processing accidents, which may result in costs of compensation to third parties for personal injury and/or property damage;

(vi) an analysis of major natural phenomena which may result in costs of compensation to third parties for personal injury and/or property damage;

(vii) an analysis of impacts due to inadvertent intrusion; and

(viii) the proposed time period of operations.

(3) The applicant's evaluation of potential costs for compensation of personal injury and property damage to third parties must rely upon:

(i) location-specific and disposal technology-specific performance assessment modelling;

(ii) location-specific and disposal technology-specific dose assessment modeling;

(iii) risk assessment of the major events or phenomena which may affect cost;

(iv) an assessment of expected radiological exposures and doses due to potential accidents or major events or phenomena or waste processing during the land disposal facility life;

(v) an assessment of the potential health effects (including stochastic and non-stochastic effects) resulting from such exposures and doses which must reflect current data concerning the biological effects of ionizing radiation; and

(vi) computer-based mathematical models. The applicant must submit detailed explanations of all calculations performed and details of all models used, including all assumptions and algorithms to the satisfaction of the department.

(4) The applicant must demonstrate to the satisfaction of the department that the coverage levels reflect due consideration of: the sizes and locations of affected facilities; the nature and volume of the low-level radioactive waste involved; the types of facilities and the degrees and durations of risk to human health and the environment; and the protection of public health and safety and the environment.

(b) Coverage Requirements During the Operation, Closure, and Post-Closure Periods. Every applicant or permittee must establish and maintain financial assurance as required by section 383-6.3(a)(3) of this Part in at least the amount approved by the commissioner pursuant to section 383-6.10(a) of this Part to ensure coverage of claims for personal injury and property damage to third parties from accidents caused by the operation of the land disposal facility during the operation, the closure, and the post-closure periods of the land disposal facility. Every applicant or permittee must submit proof of such financial assurance to the department as required by sections 383-6.3(b)(3) or 383-6.3(d) of this Part.

(c) Coverage Requirements During the Institutional Control Period. Every applicant or permittee must establish and maintain financial assurance as required by section 383-6.3(a)(3) of this Part in at least the amount approved by the commissioner pursuant to section 383-6.10(a) of this Part to ensure coverage of claims for personal injury and property damage to third parties caused by the operation of the land disposal facility during the institutional control period. Every applicant or permittee must submit proof of such financial assurance to the department as required by sections 383-6.3(b)(4) or 383-6.3(d) of this Part.

(d) Requirements for Reassessing Degree and Duration of Risk.

(1) During the operation, closure, and post-closure periods of the land disposal facility the permittee must notify the department of any circumstances or events which may impact financial assurance coverage levels. Within thirty days of the discovery of such circumstance or occurrence of such event, the permittee must submit to the department, in writing, an assessment and report of any changes in the degree and duration of risk to human health and the environment created by the circumstance or event.

(2) The department may require the permittee to submit any additional information necessary to determine if the amount of financial assurance required for third party compensation must be adjusted as a result of the circumstance or event.

(e) Adjustments to the Coverage Requirements.

(1) During the pre-closure period of the land disposal facility, the department may adjust the amount of financial assurance the permittee must provide for personal injury and property damage to third parties caused by the operation of the land disposal facility if the amount of financial assurance required by subdivisions (a) or (b) of this section does not reflect the current degree and duration of risk of personal injury and property damage presented by the land disposal facility.

(2) During the pre-closure period, the department may adjust the amount of financial assurance required for third-party personal injury and property damage to account for inflation.

§383-6.11 Other Provisions.

(a) Modification/Variance.

(1) The department may, upon written application from any person who is subject to this subpart, concurrent with an application for a new permit, or for a modification or renewal of an existing permit, grant a modification/variance from one or more specific provisions of this subpart under the conditions set forth in this section.

(2) Every application for modification/variance must:

(i) identify the specific provisions of this subpart from which a modification/variance is sought;

(ii) demonstrate that compliance with the identified provisions, on the basis of conditions unique and peculiar to the applicant's particular situation, is unnecessary or inappropriate consistent with the public interest;

(iii) demonstrate that the proposed modification/variance will have no significant adverse impact on the public health, safety or welfare, the environment or natural resources;

(iv) demonstrate that the minimum requirements of this subpart which ensure proper facility closure based upon the estimates approved pursuant to this subpart and coverage of personal injury and property damage to third parties caused by the operation of the land disposal facility will not be reduced or eliminated.

(3) The Commissioner may, in his discretion, grant a modification/variance from any provision of this subpart upon a written finding that each of the demonstrations identified in subsection (2) of this section are successfully made, and that such modification/variance is consistent with public interest and the purposes of this subpart; provided, however, the Commissioner shall not grant a modification/variance from the minimum requirements of this subpart which insure proper facility closure and coverage of personal injury and property damage to third parties caused by the operation of the facility.

(4) The procedures of Part 621 of this Title govern the processing and review of any application for modification/variance under this subpart.

(5) modification/variance granted pursuant to this section shall be set forth as a condition in either a new permit, permit modification or permit renewal.

(b) Severability.

If any provision of this subpart or its application to any person or circumstance is held invalid, the remainder of this subpart, and the application of those provisions to persons or circumstances other than those to which it is held invalid, shall not be affected thereby.

§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 Part, 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 of 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 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 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 claimants(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 Part), 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 Part), 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 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 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 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 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 acknow-ledgment by the Trustee and by the Settlor as specified in 383-6.4(b)(2) of this Part.]

(ACKNOWLEDGMENT BY TRUSTEE, IF A BANK)

STATE OF NEW YORK:

: SS.: COUNTY :

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 NEW YORK:

: SS.: COUNTY :

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 NEW YORK:

: SS.: COUNTY :

On this day of ____________________, 19__, before me personally came __________________________ to me know 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 NEW YORK:

: SS.: COUNTY :

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 Part, 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:

_____________________________

_____________________________

_____________________________

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)

(For every co-surety, provide signature(s), corporate seal, and other information in the same manner as for Surety above).

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 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 Part, 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, Article 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);

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 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 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 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 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

(If 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)

(For every co-surety, provide signature(s), corporate seal, and other information in the same manner as for Surety above).

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 Part, 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 50 Wolf Road 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 Drawn AMOUNT 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 Part, 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)

__________________________________ (Name of Person Signing)

__________________________________ (Title of Person Signing)

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 Part, 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 section 383-6.9 and 383-6.10 of this Part 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 request, 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 Part, 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 Part 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 Part;

(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 Part; 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 Part;

(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 as 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

§383-6.13 Material Incorporated by Reference.

(a) Documents and References

The following documents, referenced in this Subpart, are available for review and copying at the department's offices in Room 506, 50 Wolf Road, Albany, New York:

(1) Circular 570 of the U.S. Department of the Treasury, as published in the Federal Register, Volume 56, No. 126, July 1, 1991, pp. 30128-30173.

Referenced in this Subpart at: 6.5(m)(2)(i).

(2) Investment Company Act, 1940 (15 USC 80A-1 et seq), USC, revised as of March 1988.

Referenced in this Subpart at: 6.12(a) Section 8(a) and at 6.12(a) Section 9(b).

(b) Availability of Documents

Documents (1) and (2) can be obtained from the Superintendent of Documents, U.S. Government Printing Office, Washington, D.C. 20402.