Section 329IAC3.1-14-28. Wording of instrument; performance bonds

   A surety bond guaranteeing performance of closure and/or post-closure care, as specified in 329 IAC 3.1-15-4(d) or 329 IAC 3.1-15-6(d) (see 329 IAC 3.1-15-10(c)), must be worded as follows except that the instructions in brackets are to be replaced with the relevant information and the brackets deleted:

  Performance Bond

  Date bond executed:  

  Effective date:  

  Principal: [legal name and business address of owner or operator]

  Type of organization: [insert "individual", "joint venture", "partnership", or "corporation"]

  State of incorporation:  

  Surety(ies): [name(s) and business address(es)]:  

  EPA identification number, name, address, and closure and/or post-closure amount(s) for each facility guaranteed by this bond [indicate closure and post-closure amounts separately]:  

  Total penal sum of bond:  

  Surety's bond number:  

  We, the Principal and Surety(ies) hereto are firmly bound to the Department of Environmental Management of the State of Indiana (hereinafter IDEM), in the above 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.

  Whereas said Principal is required, under the environmental management laws as defined at IC 13-11-2-71, to have a permit in order to own or operate each hazardous waste management facility identified above, and

  Whereas said Principal is required to provide financial assurance for closure, or closure and post-closure care, as a condition of the permit, and

  Whereas said Principal shall establish a standby trust fund as is required when a surety bond is used to provide such financial assurance;

  Now, Therefore, the conditions of this obligation are such that if the Principal shall faithfully perform closure, whenever required to do so, of each facility for which this bond guarantees closure, in accordance with the closure plan and other requirements of the permit as such plan and permit may be amended, pursuant to all applicable laws, statutes, rules, and regulations, as such laws, statutes, rules, and regulations may be amended.

  And, if the Principal shall faithfully perform post-closure care of each facility for which this bond guarantees post-closure care, in accordance with the post-closure care plan and other requirements of the permit, as such plan and permit may be amended, pursuant to all applicable laws, statutes, rules, and regulations, as such laws, statutes, rules, and regulations may be amended,

  Or, if the Principal shall provide alternate financial assurance as specified in 329 IAC 3.1-15, and obtain the IDEM commissioner's written approval of such assurance, within ninety (90) days after the date notice of cancellation is received by both the Principal and the IDEM commissioner from the Surety(ies), then this obligation shall be null and void, otherwise it is to remain in full force and effect.

  The Surety(ies) shall become liable on this bond obligation only when the Principal has failed to fulfill the conditions described above.

  Upon notification by the IDEM commissioner that the Principal has been found in violation of the closure requirements of 329 IAC 3.1-9, for a facility for which this bond guarantees performance of closure, Surety(ies) shall either perform closure in accordance with the closure plan and other permit requirements or place the closure amount guaranteed for the facility into the standby trust fund as directed by the IDEM commissioner.

  Upon notification by the IDEM commissioner that the Principal has been found in violation of the post-closure requirements of 329 IAC 3.1-9 for a facility for which this bond guarantees performance of post-closure care, the Surety(ies) shall either perform post-closure care in accordance with the post-closure plan and other permit requirements or place the post-closure amount guaranteed for the facility into the standby trust fund as directed by the IDEM commissioner.

  Upon notification by the IDEM commissioner that the Principal has failed to provide alternate financial assurance as specified in 329 IAC 3.1-15, and obtain written approval of such assurance from the IDEM commissioner during the ninety (90) days following receipt by both the Principal and the IDEM commissioner of a notice of cancellation of the bond, the Surety(ies) shall place funds in the amount guaranteed for the facility(ies) into the standby trust fund as directed by the IDEM commissioner.

  The Surety(ies) hereby waive(s) notification of amendments to closure plans, permits, applicable laws, statutes, rules, and regulations and agree(s) that no such amendment shall in any way alleviate its (their) obligation on this bond.

  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 bond, but in no event shall the obligation of the Surety(ies) hereunder exceed the amount of said penal sum.

  The Surety(ies) may cancel the bond by sending notice of cancellation by certified mail to the owner or operator and to the IDEM commissioner, provided, however, that cancellation shall not occur during the one hundred twenty (120) days beginning on the date of receipt of the notice of cancellation by both the Principal and the IDEM commissioner, as evidenced by the return receipts.

  The Principal may terminate this bond by sending written notice to the Surety(ies) provided, however, that no such notice shall become effective until the Surety(ies) receive(s) written authorization for termination of the bond by the IDEM commissioner.

  [The following paragraph is an optional rider that may be included but is not required.]

  Principal and Surety(ies) hereby agree to adjust the penal sum of the bond yearly so that it guarantees a new closure and/or post-closure amount, provided that the penal sum does not increase by more than twenty percent (20%) in any one (1) year, and no decrease in the penal sum takes place without the written permission of the IDEM commissioner.

  In Witness Whereof, The Principal and Surety(ies) have executed this Performance Bond and have affixed their seals on the date set forth above.

  The persons whose signatures appear below hereby certify that they are authorized to execute this surety bond on behalf of the Principal and Surety(ies) and that the wording of this surety bond is identical to the wording specified in 329 IAC 3.1-14-28 as such rule was constituted on the date this bond was executed.

Principal

  [Signature(s)]

  [Name(s)]

  [Title(s)]

  [Corporate seal]

Corporate Surety(ies)

[Name and address]  

State of incorporation:  

Liability limit: $  

[Signature(s)]

[Name(s) and title(s)]  

[Corporate seal]:

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

Bond premium: $  

(Note: The corporate seal is not required by Indiana law.)

(Solid Waste Management Division; 329 IAC 3.1-14-28; filed Jan 24, 1992, 2:00 p.m.: 15 IR 970; filed Apr 1, 1996, 11:00 a.m.: 19 IR 1996; errata filed Apr 30, 1996, 10:00 a.m.: 19 IR 2289; errata filed Jan 10, 2000, 3:01 p.m.: 23 IR 1109; readopted filed Jan 10, 2001, 3:25 p.m.: 24 IR 1535)