(1) Except as provided in section 360.4 of this Part, each owner or operator of a facility required to obtain financial assurance must provide continuous coverage beginning no later than 60 days prior to the initial receipt of waste and until released by the department from financial assurance requirements by demonstrating compliance with the applicable closure, post-closure care, custodial care, and corrective measures requirements pertaining to the facility, and demonstrating that the facility and any waste remaining at the facility do not pose a threat to public health or the environment.

(1) The owner or operator of any facility required to obtain financial assurance, other than a landfill, must have a detailed written estimate, in current dollars, of the cost of hiring a third party to perform closure in compliance with the requirements in section 360.21 of this Part and Subpart 374-2 of this Title.

(2) The owner or operator of a landfill must have a detailed written estimate, in current dollars, of the cost of hiring a third party to perform closure, post-closure care, custodial care, and, if necessary, corrective measures in compliance with the requirements in this Part, Part 363 of this Title, and a department-approved closure plan, post-closure care plan, custodial care plan and corrective measures plan.

(3) Annual cost estimate adjustments.

(4) Discounting. The department may approve discounted estimates of post-closure care, custodial care costs and/or of corrective measures costs up to the rate of return for essentially risk-free investments, net of inflation, under the following conditions:

(5) Submission. The owner or operator must include the cost estimates in the facility annual report submitted to the department and keep a copy at the facility or other approved location.

(1) The terms of any financial assurance mechanisms provided to the department to satisfy compliance with any financial security obligation imposed by this Part or Parts 361, 362, 363, and 365 of this Title must ensure that:

(2) The department may reduce the amount of financial assurance required under this section by the amount of financial assurance obtained by a facility, for closure, post-closure, custodial care or corrective measures, for the benefit of a municipality.

(1) Trust fund.

(2) Surety bond guaranteeing payment.

(3) Letter of credit.

(4) Local government financial test.

(5) Local government guarantee.

(6) Reserve fund. A capital reserve fund or a solid waste management facility reserve fund established and funded pursuant to the General Municipal Law satisfies these requirements provided the pay in period is consistent with paragraph (1) of this subdivision.

(7) The full faith and credit of New York State or the Federal government shall be used for facilities owned or operated by New York State or the Federal government.

(8) Use of multiple financial mechanisms. An owner or operator required to provide financial assurance may satisfy the requirements of this subdivision by establishing more than one financial assurance mechanism per facility. The mechanisms must be as identified in paragraphs (1) through (6) of this subdivision, except that it is a combination of mechanisms, rather than the single mechanism, which must provide financial assurance for an amount at least equal to the current cost estimate for closure, post closure care, custodial care or corrective measures, whichever is applicable. If the owner or operator uses a trust fund in combination with a surety bond or a letter of credit, the trust fund may be used as the standby trust fund for the other mechanisms. A single standby trust fund, if required, may be established for two or more mechanisms. The department may allow the use of any or all of the mechanisms to provide for closure, post-closure care, custodial care or corrective measures of the facility.

(9) Use of a financial mechanism for multiple facilities. An owner or operator required to provide financial assurance may use a financial assurance mechanism identified in this subdivision to meet the requirements of this section for more than one facility. Evidence of financial assurance submitted to the department must include a list showing, for each facility, the name, address, and the amount of funds assured by the mechanism. The amount of funds available through the mechanisms must be no less than the sum of funds that would be available if a separate mechanism had been established and maintained for each facility. In directing funds available through the mechanisms for closure, post-closure care, custodial care or corrective measures of any of the facilities covered by the mechanism, the department may direct only the amount of funds designated for the facility, unless its owner or operator agrees to the use of additional funds available under the mechanism.

(1) For instruments covering one or more facilities required to provide financial assurance located entirely within one administrative region of the department, the owner or operator of the facility or facilities must submit each original instrument to the director of the administrative region of the department in which the facility or facilities are located, and submit a copy to the director of the Division of Materials Management or successor administrative unit.

(2) For instruments covering one or more facilities required to provide financial assurance located in more than one administrative region of the department, the owner or operator of the facility or facilities must submit each original instrument to the director of the Division of Materials Management or successor administrative unit, and submit a copy to each director of the administrative regions of the department in which the facility or facilities are located.

(3) A trust agreement for a trust fund, as identified in paragraph (d)(1) of this section, must be worded as follows, except that instructions in brackets are to be replaced with the relevant information and the brackets deleted:

TRUST AGREEMENT

[or insert STANDBY TRUST AGREEMENT if established as a standby trust to receive funds from a letter of credit, surety bond or other instrument]

TRUST AGREEMENT, the "Agreement," entered into as of [date] by and between [name of the owner or operator], a [name of State ] [insert "corporation," partnership," "association," or "proprietorship"], the "Settlor," and [name of corporate 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 "Department") has established certain regulations applicable to the Settlor, requiring that an owner or operator of a solid waste management facility shall provide financial assurance that funds will be available when needed [insert "for facility closure, and/or post-closure monitoring and maintenance, and/or custodial care monitoring and maintenance, and/or corrective measures, if necessary" or other language upon written approval of the commissioner of Department which limits or reduces the extent of the activities funded by this trust] [hereinafter referred to as [insert "Closure, Post Closure, Custodial Care and Corrective Measures"], and

WHEREAS, the Settlor has elected to establish a trust to provide all or part of such financial assurance for the [facility or 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,

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

Section 1. ‘Definitions’. As used in this Agreement:

(a) The term ‘Settlor’ means the owner or operator 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 Environmental Conservation, or the Commissioner’s duly appointed designee.

Section 2. ‘Identification of Facilities and Cost Estimates’. This Agreement pertains to the [facility or facilities] and cost estimates identified on attached Schedule A [on Schedule A, for each facility, list the Department identification numbers, names, addresses, and the costs, as established or approved by the Commissioner, per facility for Closure, Post-Closure, Custodial Care and Corrective Measures, or portions thereof, for which financial assurance is demonstrated by this Agreement].

Section 3. ‘Establishment of Fund’. The Settlor and the Trustee hereby establish a trust fund (hereinafter referred to as the "Fund") for the sole benefit of the Department. The Settlor and the Trustee intend that no third party have access to the Fund except as herein provided. The Fund 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 Fund, together with all earnings and profits thereon, less any payments or distributions made by the Trustee pursuant to this Agreement. The Fund shall be held by the Trustee, IN TRUST, as hereinafter provided. The Trustee shall not be responsible, nor shall it undertake any responsibility for the amount or adequacy of, nor any duty to collect from the Settlor, any payments necessary to discharge any liabilities of the Settlor established by the Department.

Section 4. ‘Payment for Closure, Post-closure, Custodial Care and Corrective Measures’. The Trustee shall make payment from the Fund as the Commissioner shall direct, in writing, to provide for the payment of the costs of Closure, Post-closure, Custodial Care and/or Corrective Measures of the facilities covered by this Agreement. The Trustee shall reimburse the Settlor or other persons as identified by the Commissioner from the Fund for the expenditures of such covered activities in such amounts as the Commissioner shall direct in writing. In addition, the Trustee shall refund to the Settlors such amounts as the Commissioner specifies in writing. Upon refund, such funds shall no longer constitute part of the Fund as defined herein.

Section 5. ‘Payments Comprising the Fund’. Payments made to the Trustee for the Fund shall consist of cash or securities acceptable to the Trustee.

Section 6. ‘Trustee Management’. The Trustee shall invest and reinvest the principal and income of the Fund and keep the Fund invested as a single fund, without distinction between principal and income, in compliance 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 the Fund, the Trustee shall discharge his or her duties with respect to the trust fund 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 facilities, or any of their affiliates as defined in the Investment Company Act of 1940, 15 USC 80a 2(a), shall not be acquired or held, unless they are securities or other obligations of the Federal or a state government;

(b) The Trustee is authorized to invest the Fund in time or demand deposits of the Trustee, to the extent insured by an agency of the Federal or a 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 7. ‘Commingling and Investment’. The Trustee is expressly authorized in its discretion:

(a) To transfer from time to time any or all of the assets of the Fund to any common, commingled, or collective trust fund created by the Trustee in which the Fund is eligible to participate, subject to all of the provisions thereof, to be commingled with the assets of other trusts participating therein; and

(b) To purchase shares in any investment company registered under the Investment Company Act of 1940, 15 USC 80a 1 ‘et seq.’, including one which may be created, managed, underwritten, or to which investment advice is rendered or the shares of which are sold by the Trustee. The Trustee may vote such shares in its discretion.

Section 8. ‘Express Powers of Trustee’. Without in any way limiting the powers and discretions conferred upon the Trustee by the other provisions of this Agreement or by law, the Trustee is expressly authorized and empowered:

(a) To sell, exchange, convey, transfer, or otherwise dispose of any property held by it, by public or private sale. No person dealing with the Trustee shall be bound to see to the application of the purchase money or to inquire into the validity or expediency of any such sale or other disposition;

(b) To make, execute, acknowledge, and deliver any and all documents of transfer and conveyance and any and all other instruments that may be necessary or appropriate to carry out the powers herein granted;

(c) To register any securities held in the Fund in its own name or in the name of a nominee and to hold any security in bearer form or in book entry, or to combine certificates representing such securities with certificates of the same issue held by the Trustee in other fiduciary capacities, or to deposit or arrange for the deposit of such securities in a qualified central depository even though, when so deposited, such securities may be merged and held in bulk in the name of the nominee of such depository with other securities deposited therein by another person, or to deposit or arrange for the deposit of any securities issued by the United States Government, or any agency or instrumentality thereof, with a Federal Reserve bank, but the books and records of the Trustee shall at all times show that all such securities are part of the Fund;

(d) To deposit any cash in the Fund in interest-bearing accounts maintained or savings certificates issued by the Trustee, in its separate corporate capacity, or in any other banking institution affiliated with the Trustee, to the extent insured by an agency of the Federal or State government;

(e) To accept additions to the Fund from sources other than the Settlor of the Trust; and

(f) To contest, compromise, or otherwise settle any claim in favor of the Fund or Trustee, or in favor of third persons and against the Fund or Trustee.

Section 9. ‘Taxes and Expenses’. All taxes of any kind that may be assessed or levied against or in respect of the Fund and all brokerage commissions incurred by the 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 of the proper charges and disbursements of the Trustee shall be paid from the Fund.

Section 10. ‘Annual Valuation’. The Trustee shall annually, at least 30 days before the anniversary date of establishment of the Fund, furnish to the Settlor and to the Commissioner, a statement confirming the value of the Trust. Any securities in the fund shall be valued at market value as of no more than 60 days before the anniversary date of the establishment of the Fund. The failure of the Settlor to object in writing to the Trustee within 90 days after the statement has been furnished to the Settlor and to the Commissioner shall constitute a conclusively binding assent by the Settlor, barring the Settlor from asserting any claim or liability against the Trustee with respect to matters disclosed in the statement. [For a standby trust agreement, insert “This provision does not apply to a standby trust fund until payments have been made to the Fund”]

Section 11. ‘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 12. ‘Trustee Compensation’. The Trustee shall be entitled to reasonable compensation for its services as agreed upon in writing from time to time with the Settlor.

Section 13. ‘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 appointed a Successor Trustee and this successor accepts the appointment. The Successor Trustee shall have the same powers and duties as those conferred upon the Trustee hereunder. Upon the Successor Trustee's acceptance of the appointment, the Trustee shall assign, transfer, and pay over to the Successor Trustee the funds and properties then constituting the Fund. If for any reason the 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 of a Successor Trustee or for instruction. The Successor Trustee shall specify the date on which it assumes administration of the trust in writing sent to the Settlor, the Commissioner, and the present Trustee by certified mail, return receipt requested, 30 days before such change becomes effective. Any expenses incurred by the Trustee as a result of any of the acts contemplated by this section shall be paid as provided in section 9.

Section 14. ‘Instructions to the Trustee’. All orders, requests, and instructions by the Settlor to the Trustee shall be in writing, signed by such persons as are designated in the attached Schedule C or such other designees as the Settlor may designate by amendment to Schedule C. The Trustee shall be fully protected in acting without inquiry in compliance with the Settlor's orders, requests, and instructions. All orders, requests, and instructions by the Department to the Trustee shall be in writing, signed by the Commissioner, and the Trustee shall act and shall be fully protected in acting in compliance 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 Department hereunder has occurred. The Trustee shall have no duty to act in the absence of such orders, requests, and instructions from the Settlor and/or Department except as provided for herein.

Section 15. ‘Notice of Nonpayment’. The Trustee shall notify the Settlor and the Commissioner, by certified mail, return receipt requested, [if annual payments are to be made to the Fund insert “within 30 days after each anniversary of the establishment of the Trust” or if payments are to be made on a different basis, such as monthly or quarterly, then insert other language approved by the Department], 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. [For a standby trust agreement, insert “This provision does not apply to a standby trust fund unless and until payments have been made to the Fund.”]

Section 16. ‘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 17. ‘Irrevocability and Termination’. Subject to the right of the parties to amend this Agreement as provided in section 16, this Trust shall be irrevocable and shall continue until terminated at the written agreement of the Settlor, the Trustee, and the Commissioner, or by the Trustee and the Commissioner if the Settlor ceases to exist. Upon termination of the Trust, all remaining trust property, less final trust administration expenses, shall be delivered to the Settlor.

Section 18. ‘Immunity and Indemnification’. The Trustee shall not incur personal liability of any nature in connection with any act or omission, made in good faith, in the administration of this Trust, or in the carrying out of any directions by the Settlor or the Commissioner issued in compliance with this Agreement. The Trustee shall be indemnified and saved harmless by the Settlor or from the Trust Fund, or both, from and against any personal liability to which the Trustee may be subjected by reason of any act or conduct in its official capacity, including all expenses reasonably incurred in its defense in the event the Settlor fails to provide such defense.

Section 19. ‘Choice of Law’. This Agreement shall be administered, construed, and enforced according to the laws of the State of New York.

Section 20. ‘Fund Not an Asset of Settlor in Bankruptcy’. It is the Settlor’s legal and equitable obligation under the permit and other applicable law, which obligation is not limited to the value of the Fund, to provide for the payment of the costs of Closure, Post-closure, Custodial Care, and/or Corrective Measures of the [facility or facilities], inter alia, in accordance with the terms of the permit, any subsequent modifications thereof, and 6 NYCRR Parts 360, 361, 362, 363, and 365. This trust is irrevocable and created for the sole benefit of the Department. The parties agree that normal principles of trust law apply, and that legal Title to the Fund shall be in the trustee and the Department, to ensure, inter alia, Proper Closure, Post-Closure, Custodial Care and/or Corrective Measures are carried out at the [facility or facilities] without adverse environmental or health impacts. The Settlor shall have no property interest in the Fund except a contingent remainder interest which shall entitle it to receive, upon the completion of Closure, Post-Closure, Custodial Care and/or Corrective Measures to the satisfaction of the Department, any funds remaining in the trust in excess of such costs and the final administrative costs of the trustee and the Fund. The interest of any beneficiary, including any contingent remainder interest, of any trust created hereunder, either as to income or principal, shall not be anticipated, alienated or in any manner assigned by such beneficiary or contingent remainder interest holder, and shall not be subject to any legal process, bankruptcy proceedings or the interference or control of creditors or others.

Section 21. ‘Interpretation’. As used in this Agreement, words in the singular include the plural and words in the plural include the singular. The descriptive headings for each section of this Agreement shall not affect the interpretation or the legal efficacy of this Agreement.

IN WITNESS WHEREOF the parties have caused this Agreement to be executed by their respective officers duly authorized and their corporate seals to be hereunto affixed, if appropriate, and attested as of the date first written below. The parties below certify that the wording of this Agreement is identical to the wording identified in 6 NYCRR 360.22(e)(3) as such regulations were constituted on the date first written below.

_________________

Settlor

_________________

Title

_________________

Company Name

_________________

Trustee

_________________

Title

_________________

Banking Institution or Trust Company

(ACKNOWLEDGMENT BY TRUSTEE) within New York

State of New York }

{ ss.:

County of }

On the day of , in the year 2 , before me, the undersigned, personally appeared , personally known to me or proved to me on the basis of satisfactory evidence to be the individual(s) whose name(s) is (are) subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their capacity(ies), and that by his/her/their signature(s) on the instrument, the individual(s) or the person upon behalf of which the individual(s) acted, executed the instrument.

Notary Public

(ACKNOWLEDGMENT BY TRUSTEE) outside New York

[Insert State, District of Columbia, Territory, Possession or Foreign Country] } ss.

On the day of , in the year 2 , before me, the undersigned, personally appeared , personally known to me or proved to me on the basis of satisfactory evidence to be the individual(s) whose name(s) is (are) subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their capacity(ies), that by his/her/their signature(s) on the instrument, the individual(s), or the person upon behalf of which the individual(s) acted, executed the instrument, and that such individual made such appearance before the undersigned in the [Insert the City or other political subdivision and the state or country or other place the acknowledgement was taken].

Signature:

Name:

Office:

(ACKNOWLEDGMENT BY SETTLOR) within New York

State of New York }

} ss.:

County of }

On the day of , in the year 2 , before me, the undersigned, personally appeared , personally known to me or proved to me on the basis of satisfactory evidence to be the individual(s) whose name(s) is (are) subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their capacity(ies), and that by his/her/their signature(s) on the instrument, the individual(s) or the person upon behalf of which the individual(s) acted, executed the instrument.

Notary Public

(ACKNOWLEDGMENT BY SETTLOR) outside New York

[Insert State, District of Columbia, Territory, Possession or Foreign Country] } ss.

On the day of , in the year 2 , before me, the undersigned, personally appeared , personally known to me or proved to me on the basis of satisfactory evidence to be the individual(s) whose name(s) is (are) subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their capacity(ies), that by his/her/their signature(s) on the instrument, the individual(s), or the person upon behalf of which the individual(s) acted, executed the instrument, and that such individual made such appearance before the undersigned in the [Insert the City or other political subdivision and the state or country or other place the acknowledgement was taken].

Signature:

Name:

Office:

Schedule A

Identification of Facility(ies) and Cost Estimates

[Provide the following information for each facility covered under the Trust Agreement.]

Name and Address of Facility(ies)_______________

_________________

_________________

NYS DEC Identification Number(s): _______________

Cost estimate(s):

Closure_________

Post-Closure Care _________

Custodial Care __________

Corrective Measures __________

Total _______

Schedule B

Identification of Property

The fund is established initially as consisting of the following:

Amount: $______

Type of property: [identify the type of property used to establish the fund (e.g., cash, check, etc.)]

Source: [identify the name of the source of the funds (e.g., bank, facility owner or operator, etc.)]

Date: [insert date].

[For a Standby Trust Agreement insert “This agreement will be funded by the following:

Type of property and number: [Letter of Credit and #, Surety Bond and #, cash, etc.]

Issued by: [identify the name of the source of the funds (e.g.,. bank, facility owner or operator, etc.)]

Date: [insert date] in accordance with the terms of [(e.g., Letter of Credit, Surety Bond, etc.)].”]

Schedule C

Identification of Authorized Personnel

Any orders, requests or instructions by the Settlor to the Trustee may be signed by any one of the following persons:

[Provide the following contact information for each person authorized to give orders, requests or instructions.]

_________________

Title:

Name:

_________________

Address:

_________________

Phone Number: __________

(4) A surety bond, as identified in paragraph (d)(2) of this section, must be worded exactly as follows, except that instructions in brackets are to be replaced with the relevant information and the brackets deleted:

SURETY BOND

(Financial Guarantee Bond)

Bond Number:

_________________

Date bond executed:

_________________

[If more than one Surety, identify bond number with respective Surety]

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) of Surety(ies)]

Obligee: New York State Department of Environmental Conservation (hereinafter referred to as “Department”)

Department identification numbers, name, address, and closure, post-closure, custodial care, and/or corrective measures amount(s) for each facility guaranteed by this bond [indicate facility and closure, post-closure, custodial care and corrective measures amounts separately]:

_________________

_________________

_________________

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

NOW, THEREFORE, Know All Persons By These Presents, that we, the Principal and Surety(ies) hereto are held and firmly bound to the Department 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 Environmental Conservation Law (ECL) Article 27, to have a permit in order to operate each solid waste management facility identified above; and

WHEREAS said Principal is required to provide financial assurance for closure, post-closure care, custodial care and/or corrective measures as referred to above, as a condition of the permit(s); 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 the obligation are such that if the Principal shall faithfully perform and complete [insert “closure”, “post-closure care”, “custodial care” “and/or corrective measures”] whenever required to do so at each facility for which this bond guarantees payment for [“closure”, “post-closure care”, “custodial care” “and/or corrective measures”] in compliance with the [“closure plan”, “post-closure care plan”, “custodial care plan” “and/or corrective measures plan”] and other requirements of the permit, applicable rules, regulations, and orders of the department, and applicable provisions of the laws of the State of New York,

OR, if the Principal shall faithfully, before the beginning of final closure of each facility for which this bond guarantees payment, fund the standby trust fund in the amount(s) identified above for each facility,

OR, if the Principal shall fund the standby trust fund in such amount(s) within 15 days after an order to begin closure is issued by the Commissioner of the New York State Department of Environmental Conservation or the Commissioner’s duly appointed designee (hereinafter referred to as the “Commissioner”) or a United States district court or other court of competent jurisdiction,

OR, if the Principal shall provide alternate financial assurance, as identified in 6 NYCRR Section 360.22(d), as applicable, and obtain the Commissioner’s written approval of such assurance, within 90 days after the date notice of cancellation is received by both the Principal and the Department 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 Commissioner that the Principal has failed to perform as guaranteed by this bond, the Surety(ies) shall provide funds up to the amount guaranteed for the facility(ies) into the standby trust fund or as otherwise directed by the Commissioner.

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) hereby waive(s) notifications of amendments to closure, post-closure, custodial care and/or corrective measures plans, permits, applicable laws, statutes, rules, and regulations and agrees that no such amendment shall in any way alleviate the Surety’s obligation on this bond.

The Surety(ies) may cancel the bond by sending notice of cancellation by certified mail, return receipt requested, to the Principal and the Commissioner, provided, however, that cancellation shall not occur during the 120 days beginning on the date of receipt of the notice of cancellation by both the Principal and the 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 Commissioner.

Principal and Surety(ies) hereby agree to adjust the penal sum of the bond yearly so that it guarantees the current closure, post-closure and/or corrective measures amount, provided that no decrease in the penal sum takes place without the written permission of the Commissioner.

IN WITNESS WHEREOF, the Principal and Surety(ies) 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 identified in 6 NYCRR Section 360.22(e)(4), as such regulations were 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: (For each facility, and in the aggregate)

$ _________

(Signature(s)) _______________

(Name(s) and Title(s))

_________________

(Corporate Seal)

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

Bond Premium: $ ________________

(ACKNOWLEDGMENT BY TRUSTEE) within New York

State of New York }

} ss.:

County of }

On the day of , in the year 2 , before me, the undersigned, personally appeared , personally known to me or proved to me on the basis of satisfactory evidence to be the individual(s) whose name(s) is (are) subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their capacity(ies), and that by his/her/their signature(s) on the instrument, the individual(s) or the person upon behalf of which the individual(s) acted, executed the instrument.

Notary Public

(ACKNOWLEDGMENT BY TRUSTEE) outside New York

[Insert State, District of Columbia, Territory, Possession or Foreign Country] } ss.

On the day of , in the year 2 , before me, the undersigned, personally appeared , personally known to me or proved to me on the basis of satisfactory evidence to be the individual(s) whose name(s) is (are) subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their capacity(ies), that by his/her/their signature(s) on the instrument, the individual(s), or the person upon behalf of which the individual(s) acted, executed the instrument, and that such individual made such appearance before the undersigned in the [Insert the City or other political subdivision and the state or country or other place the acknowledgement was taken].

Signature:

Name:

Office:

(ACKNOWLEDGMENT BY SETTLOR) within New York

State of New York }

} ss.:

County of }

On the day of , in the year 2 , before me, the undersigned, personally appeared , personally known to me or proved to me on the basis of satisfactory evidence to be the individual(s) whose name(s) is (are) subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their capacity(ies), and that by his/her/their signature(s) on the instrument, the individual(s) or the person upon behalf of which the individual(s) acted, executed the instrument.

Notary Public

(ACKNOWLEDGMENT BY SETTLOR) outside New York

[Insert State, District of Columbia, Territory, Possession or Foreign Country] } ss.

On the day of ___, in the year 2___ , before me, the undersigned, personally appeared , personally known to me or proved to me on the basis of satisfactory evidence to be the individual(s) whose name(s) is (are) subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their capacity(ies), that by his/her/their signature(s) on the instrument, the individual(s), or the person upon behalf of which the individual(s) acted, executed the instrument, and that such individual made such appearance before the undersigned in the [Insert the City or other political subdivision and the state or country or other place the acknowledgement was taken].

Signature:

Name:

Office:

(5) A letter of credit, as identified in paragraph (d)(3) of this section, must be worded exactly as follows, except that instructions in brackets are to be replaced with the relevant information and the brackets deleted:

Irrevocable Letter of Credit

[Name and address of banking establishment] [Date]

[See instruction at 6 NYCRR 360.22(e)(1) and (2) of this Part for addressing]

Regional Director

Region [Number of the appropriate Department of Environmental Conservation Regional Office in which the facility is located, (i.e., 1 – 9)]

New York State Department of Environmental Conservation

[Address of the appropriate Regional Office]

OR

Commissioner

New York State Department of Environmental Conservation

Attn: Division of Materials Management [or successor administrative unit]

625 Broadway

Albany, New York 12233 7260

Re: Letter of Credit No. –––––––––

Dear [insert “Commissioner” or “Regional Director”]:

We hereby establish and open our Irrevocable Letter of Credit No. ________ in your favor, at the request and for the account of [owner's or operator's 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 covers [insert “closure”, “post-closure care”, “custodial care”, and/or “corrective measures”, whichever apply] at the following [facility or facilities]: [identify each of the owner’s or operator’s facilities by name, address and Department of Environmental Conservation identification number, and the amounts for each].

This letter of credit is effective as of [date] and shall expire on [date at least 1 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 120 days before the current expiration date, we notify both you and [owner's or operator's name] 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 120 days after the date of receipt by both you and (owner's or operator's name), as shown on the signed return receipts.

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, that [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 deposit the amount of the draft into the standby trust fund of [owner's or operator's name] or the amount will be otherwise disbursed in compliance with the [“Commissioner's” or “Regional Director’s”] instructions.

We certify that the wording of this letter of credit is identical to the wording identified in 6 NYCRR 360.22(e)(5), as such regulations were constituted on the date shown immediately below.

Very truly yours,

[Insert name of bank issuing credit]

By: ______________________

[insert name and Title of authorized employee or officer of bank issuing letter of credit.]

Date: ________________

This credit is subject to [insert "the most recent edition of the Uniform Customs and Practice for Documentary Credits, published and copyrighted by the International Chamber of Commerce," as described in 6 NYCRR Part 373-2.8(j)(3), or "the Uniform Commercial Code of the State of New York"].