Section 329IAC3.1-14-33. Wording of instrument; guarantee for closure or post-closure care

   A guarantee, as specified in section 9 or 19 of this rule, 329 IAC 3.1-15-4(g), or 329 IAC 3.1-15-6(g) (see 329 IAC 3.1-15-10(h)), must be worded as follows except that instructions in brackets are to be replaced with the relevant information and the brackets deleted:

Guarantee for Closure or Post-Closure Care

  Guarantee made this [date] by [name of guaranteeing entity], a business corporation organized under the laws of the State of [insert state's name], herein referred to as guarantor. This guarantee is made on behalf of the [owner or operator] of [business address], which is [one (1) of the following: "our subsidiary" or "a subsidiary of [name and address of common parent corporation], of which guarantor is a subsidiary"] to the Department of Environmental Management of the State of Indiana (IDEM).

Recitals

1. Guarantor meets or exceeds the financial test criteria and agrees to comply with the reporting requirements for guarantors as specified in 329 IAC 3.1-14-9 and 329 IAC 3.1-14-19 or 329 IAC 3.1-15-4(g) and 329 IAC 3.1-15-6(g).

2. [Owner or operator] owns or operates the following hazardous waste management facility(ies) covered by this guarantee: [List for each facility: EPA identification number, name, and address. Indicate for each whether guarantee is for closure, post-closure, or both.]

3. "Closure plan" and "post-closure plan" as used below refer to the plans maintained as required by 329 IAC 3.1-14 and 329 IAC 3.1-15 for the closure and post-closure care of facilities as identified above.

4. For value received from [owner or operator], guarantor guarantees to IDEM that in the event that [owner or operator] fails to perform [insert "closure", "post-closure care", or "closure and post-closure care"] of the above facility(ies) in accordance with the closure or post-closure plans and other permit or interim status requirements whenever required to do so, the guarantor shall do so or establish a trust fund as specified in 329 IAC 3.1-14 and 329 IAC 3.1-15, as applicable, in the name of [owner or operator] in the amount of the current closure or post-closure cost estimates as specified in 329 IAC 3.1-14 and 329 IAC 3.1-15.

5. Guarantor agrees that if, at the end of any fiscal year before termination of this guarantee, the guarantor fails to meet the financial test criteria, guarantor shall send within ninety (90) days, by certified mail, notice to the IDEM commissioner and to [owner or operator] that the guarantor intends to provide alternate financial assurance as specified in 329 IAC 3.1-14 and 329 IAC 3.1-15, as applicable, in the name of [owner or operator]. Within one hundred twenty (120) days after the end of such fiscal year, the guarantor shall establish such financial assurance unless [owner or operator] has done so.

6. The guarantor agrees to notify the IDEM commissioner by certified mail, of a voluntary or involuntary bankruptcy proceeding under 11 U.S.C. 101 et seq., October 1, 1979, naming guarantor as debtor, within ten (10) days after commencement of the proceeding.

7. Guarantor agrees that within thirty (30) days after being notified by the IDEM commissioner of a determination that guarantor no longer meets the financial test criteria or that the guarantor is disallowed from continuing as a guarantor of closure or post-closure care, the guarantor shall establish alternate financial assurance as specified in 329 IAC 3.1-14 and 329 IAC 3.1-15, as applicable, in the name of [owner or operator] unless [owner or operator] has done so.

8. Guarantor agrees to remain bound under this guarantee notwithstanding any or all of the following: amendment or modification of the closure or post-closure plan, amendment or modification of the permit, the extension or reduction of the time of performance of closure or post-closure, or any other modification or alteration of an obligation of the owner or operator pursuant to 329 IAC 3.1-10 or 329 IAC 3.1-9.

9. Guarantor agrees to remain bound under this guarantee for so long as [owner or operator] must comply with the applicable financial assurance requirements of 329 IAC 3.1-14 and 329 IAC 3.1-15 for the above-listed facilities except as provided in paragraph 10 of this guarantee.

10. Guarantor may terminate this guarantee by sending notice by certified mail to the IDEM commissioner and to [owner or operator], provided that this guarantee may not be terminated unless and until [owner or operator] obtains, and the IDEM commissioner approves, alternate closure, post-closure care, or closure and post-closure care coverage complying with 329 IAC 3.1-14 or 329 IAC 3.1-15, or both.

11. Guarantor agrees that if [owner or operator] fails to provide alternate financial assurance as specified in 329 IAC 3.1-14 and 329 IAC 3.1-15, as applicable, and obtain written approval of such assurance from the IDEM commissioner within ninety (90) days after a notice of cancellation by the guarantor is received by the IDEM commissioner from guarantor, guarantor shall provide such alternate financial assurance in the name of [owner or operator].

12. Guarantor expressly waives notice of acceptance of this guarantee by the IDEM commissioner or by [owner or operator]. Guarantor also expressly waives notice of amendments or modifications of the closure and/or post-closure plan and of amendments or modifications of the facility permit(s).

  I hereby certify that the wording of this guarantee is identical to the wording specified in 329 IAC 3.1-14-33 as such rule was constituted on the date first above written.

  Effective date:  

  [Name of guarantor]

  [Authorized signature for guarantor]

  [Name of person signing]

  [Title of person signing]

  Signature of witness or notary:  

(Solid Waste Management Division; 329 IAC 3.1-14-33; filed Jan 24, 1992, 2:00 p.m.: 15 IR 978; filed Apr 1, 1996, 11:00 a.m.: 19 IR 2002; readopted filed Jan 10, 2001, 3:25 p.m.: 24 IR 1535)