310 CMR, § 80.54

Current through Register 1538, January 3, 2025

Section 80.54 - Requirements for Financial Responsibility Mechanisms

(1)Underground Storage Tank Petroleum Product Cleanup Fund. An Owner or Operator may satisfy the requirements of 310 CMR 80.52 by obtaining coverage from the Underground Storage Tank Petroleum Product Cleanup Fund at M.G.L. c. 21J, if the Owner or Operator complies with M.G.L. c. 21J and 503 CMR 2.00: Underground Storage Tank Petroleum Product Cleanup Fund Regulations Implementing M.G.L. c. 21J.

(2)Insurance and Risk Retention Group Coverage.

(a) An Owner or Operator may satisfy the requirements of 310 CMR 80.52 by obtaining liability insurance that conforms to the requirements of 310 CMR 80.54(2) from a qualified insurer or risk retention group. Such insurance may be in the form of a separate insurance policy or an endorsement to an existing insurance policy.

(b) Each insurance policy must be amended by an endorsement worded as specified in 310 CMR 80.54(2)(b)1., or evidenced by a certificate of insurance worded as specified in 310 CMR 80.54(2)(b)2., except that italicized instructions in brackets must be replaced with the relevant information and the brackets deleted:

1.Endorsement.

Name: [name of each covered location]

____________________________________________

Address: [address of each covered location]

____________________________________________

Policy Number: _____________________

Period of Coverage: [current policy period]

____________________________________________

Name of [Insurer or Risk Retention Group]:

____________________________________________

Address of [Insurer or Risk Retention Group]:

____________________________________________

Name of Insured: ______________________

Address of Insured: ____________________

____________________________________________

Endorsement:

1. This endorsement certifies that the policy to which the endorsement is attached provides liability insurance covering the following tanks:

[List the number of tanks at each facility and the name(s) and address(es) of the facility(ies) where the tanks are located. If more than one instrument is used to assure different tanks at any one facility, for each tank covered by this instrument, list the DEP tank number provided in the registration submitted in accordance with 310 CMR 80.23(1), and the name and address of the facility.]

For [insert: "taking corrective action" and/or "compensating third parties for bodily injury and property damage caused by" either "sudden accidental releases" or "nonsudden accidental releases"] or "accidental releases"; in accordance with and subject to the limits of liability, exclusions, conditions, and other terms of the policy; [if coverage is different for different tanks or locations, indicate the type of coverage applicable to each tank or location] arising from operating the UST(s) identified above.

The limits of liability are [insert the dollar amount of the "each occurrence" and "annual aggregate" limits of the Insurer's or Group's liability; if the amount of coverage is different for different types of coverage or for different USTs or locations, indicate the amount of coverage for each type of coverage and/or for each UST or location], exclusive of legal defense costs, which are subject to a separate limit under the policy. This coverage is provided under [policy number]. The effective date of said policy is [date].

2. The insurance afforded with respect to such occurrences is subject to all of the terms and conditions of the policy; provided, however, that any provisions inconsistent with 310 CMR 80.54(2)(a)2.a. through e. are hereby amended to conform with 310 CMR 80.54(2)(a)2.a. through e.;

a. Bankruptcy or insolvency of the insured shall not relieve the ["Insurer" or "Group"] of its obligations under the policy to which this endorsement is attached.

b. The ["Insurer" or "Group"] is liable for the payment of amounts within any deductible applicable to the policy to the provider of corrective action or a damaged third-party, with a right of reimbursement by the insured for any such payment made by the ["Insurer" or "Group"]. This provision does not apply with respect to that amount of any deductible for which coverage is demonstrated under another mechanism or combination of mechanisms as specified in 310 CMR 80.54.

c. The Owner and Operator agree to furnish to the Massachusetts Department of Environmental Protection (the Department) a signed duplicate original of the policy and all endorsements upon request.

d. Cancellation or any other termination of the insurance by the ["Insurer" or "Group"], except for non-payment of premium or misrepresentation by the insured, shall be effective only upon written notice and only after the expiration of 60 days after a copy of such written notice is received by the insured. Cancellation for non-payment of premium or misrepresentation by the insured will be effective only upon written notice and only after expiration of a minimum of ten days after a copy of such written notice is received by the insured.

[Insert for the following paragraph for claims-made policies]:

e. The insurance covers claims otherwise covered by the policy that are reported to the ["Insurer" or "Group"] within six months of the effective date of cancellation or non-renewal of the policy except where the new or renewed policy has the same retroactive date or a retroactive date earlier than that of the prior policy, and which arise out of any covered occurrence that commenced after the policy retroactive date, if applicable, and prior to such policy renewal or termination date. Claims reported during such extended reporting period are subject to the terms, conditions, limits, including limits of liability, and exclusions of the policy.

I hereby certify that the wording of this instrument is identical to the wording in 310 CMR 80.54(2)(b)1. and that the ["Insurer" or "Group"] is [choose applicable language "licensed to transact the business of insurance" or "eligible to provide insurance as an excess or surplus lines insurer in one or more states"].

[Signature of authorized representative of Insurer or Risk Retention Group]

[Name of person signing]

[Title of person signing], Authorized Representative of [name of Insurer or Risk Retention Group]

[Address of Representative]

2.Certificate of Insurance.

Name: [name of each covered location]

____________________________________________

Address: [address of each covered location]

____________________________________________

Policy Number:______________________

Endorsement (if applicable):____________

Period of Coverage: [current policy period]

____________________________________________

Name of [Insurer or Risk Retention Group]:

____________________________________________

Address of [Insurer or Risk Retention Group]:

____________________________________________

Name of Insured: ______________________

Address of Insured:

____________________________________________

Certification:

1. [Name of Insurer or Risk Retention Group], [the "Insurer" or "Group"], as identified above, hereby certifies that it has issued liability insurance covering the following UST(s):

For [insert: "taking corrective action" and/or "compensating third parties for bodily injury and property damage caused by" either "sudden accidental releases" or "nonsudden accidental releases" or "accidental releases"]; in accordance with and subject to the limits of liability, exclusions, conditions, and other terms of the policy; [if coverage is different for different tanks or locations], indicate the type of coverage applicable to each tank or location] arising from operating the UST(s) identified above.

The limits of liability are [insert the dollar amount of the "each occurrence" and "annual aggregate" limits of the Insurer's or Group's liability; if the amount of coverage is different for different types of coverage or for different USTs or locations, indicate the amount of coverage for each type of coverage and/or for each UST or location], exclusive of legal defense costs, which are subject to a separate limit under the policy. This coverage is provided under [policy number]. The effective date of said policy is [date].

2. The ["Insurer" or "Group"] further certifies the following with respect to the insurance described in Paragraph one:

a. Bankruptcy or insolvency of the insured shall not relieve the ["Insurer" or "Group"] of its obligations under the policy to which this certificate applies.

c. The Owner and Operator agree to furnish to the Department a signed duplicate original of the policy and all endorsements upon request.

[Insert the following paragraph for claims-made policies]:

e. The insurance covers claims otherwise covered by the policy that are reported to the ["Insurer" or "Group"] within six months of the effective date of cancellation or non-renewal of the policy, except where the new or renewed policy has the same retroactive date or a retroactive date earlier than that of the prior policy, and which arise out of any covered occurrence that commenced after the policy retroactive date, if applicable, and prior to such policy renewal or termination date. Claims reported during such extended reporting period are subject to the terms, conditions, limits, including limits of liability, and exclusions of the policy.

I hereby certify that the wording of this instrument is identical to the wording in 310 CMR 80.54(2)(b)2. and that the ["Insurer" or "Group"] is [choose applicable language "licensed to transact the business of insurance ", or "eligible to provide insurance as an excess or surplus lines insurer, in the Commonwealth of Massachusetts"].

[Signature of authorized representative of Insurer or Risk Retention Group]

[Type name]

[Title], Authorized Representative of [name of Insurer or Risk Retention Group]

[Address of Representative]

(c) Each insurance policy shall be issued by an insurer or a risk retention group that, at a minimum, is licensed to transact the business of insurance or eligible to provide insurance as an excess or surplus lines insurer in the Commonwealth of Massachusetts.

(3)Surety Bond.

(a) An Owner or Operator may satisfy the requirements of 310 CMR 80.52 by obtaining a surety bond that conforms to the requirements of 310 CMR 80.54(3). The surety company issuing the bond shall be among those listed as acceptable sureties on federal bonds in the latest Circular 570 of the U.S. Department of the Treasury.

(b) The surety bond must be worded as follows, except that italicized instructions in brackets must be replaced with the relevant information and the brackets deleted:

Performance Bond.

Date bond executed: ____________________

Effective date: _________________________

Period of coverage: ______________________

Principal: [legal name and business address of person obtaining the surety bond, i.e. Owner or Operator]

____________________________________________

Type of organization: [insert "individual," or "joint venture," or "partnership," or "corporation" or "limited liability company" or limited liability partnership" or "trust'']

____________________________________________

State of incorporation (if applicable):

____________________________________________

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

____________________________________________

Scope of Coverage: [List the number of tanks at each facility and the name(s) and address(es) of the facility(ies) where the tanks are located. If more than one instrument is used to assure different tanks at any one facility, for each tank covered by this instrument, list the DEP tank number provided in the registration submitted in accordance with 310 CMR 80.23(1), and the name and address of the facility. List the coverage guaranteed by the bond: "taking corrective action" and/or "compensating third parties for bodily injury and property damage caused by" either "sudden accidental releases" or "nonsudden accidental releases" or "accidental releases"] "arising from operating the tank".

Penal sums of bond:

Per occurrence $____________________

Annual aggregate $____________________

Surety's bond number:____________________

Know All Persons by These Presents, that we, the Principal and Surety(ies), hereto are firmly bound to the Massachusetts Department of Environmental Protection (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 sums 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 in accordance with 310 CMR 80.51 through 80.63, to provide financial assurance for [insert: "taking corrective action" and/or "compensating third parties for bodily injury and property damage caused by" either "sudden accidental releases" or "nonsudden accidental releases" or "accidental releases"; if coverage is different for different tanks or locations, indicate the type of coverage applicable to each tank or location] arising from operating the tanks identified above, 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 ["take corrective action, in accordance with M.G.L. c. 21E, 310 CMR 40.0000: Massachusetts Contingency Plan, other applicable laws and regulations and the Department's instructions for," and/or "compensate injured third parties for bodily injury and property damage caused by" either "sudden accidental releases" or "nonsudden accidental releases" or "accidental releases"] arising from operating the tank(s) identified above, or if the Principal shall provide alternate financial assurance in accordance with 310 CMR 80.57, and obtain the Department's written approval of such assurance within 120 days after receipt of the notice of termination by the Principal and the Department (if the dates of receipt are different, the later date shall control) 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 also become liable on this bond obligation when:

(a) There is the commencement of a voluntary or involuntary proceeding under Title 11 (Bankruptcy), U.S. Code, naming the Principal as debtor; or

(b) The Principal, if it has a legal existence, has failed to maintain said legal existence and no successor has assumed its legal obligations in accordance with 310 CMR 80.00.

Such obligation does not apply to any of the following:

1. Any obligation of [insert "owner" or "operator"] under a workers' compensation, disability benefits, or unemployment compensation law or other similar law;

2. Bodily injury to an employee of [insert "owner" or "operator"] arising from, and in the course of, employment by [insert "owner" or "operator"];

3. Bodily injury or property damage arising from the ownership, maintenance, use, or entrustment to others of any aircraft, motor vehicle, or watercraft;

4. Property damage to any property owned, rented, loaned to, in the care, custody, or control of, or occupied by [insert "owner" or "operator"] that is not the direct result of a release from a petroleum UST; or

5. Bodily injury or property damage for which [insert "owner" or "operator"] is obligated to pay damages by reason of the assumption of liability in a contract or agreement other than a contract or agreement entered into to meet the requirements of 310 CMR 80.52.

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 Department that the Principal has failed to [insert "take corrective action, in accordance with M.G.L. c. 21E, 310 CMR 40.0000: Massachusetts Contingency Plan, other applicable laws and regulations and the Department's instructions," and/or "compensate injured third parties"] as guaranteed by this bond, the Surety(ies) shall either perform [insert "corrective action in accordance with M.G.L. c. 21E, 310 CMR 40.0000: Massachusetts Contingency Plan, other applicable laws and regulations and the Department's instructions," and/or "third-party liability compensation"] or place funds in an amount up to the annual aggregate penal sum into the standby trust fund as directed by the Department in accordance with 310 CMR 80.60.

Upon notification by the Department that the Principal has failed to provide alternate financial assurance as specified in 310 CMR 80.57 and has failed to obtain the Department's written approval of such assurance within 60 days after the date the notice of cancellation is received by both the Principal and the Department (if the dates of receipt are different, the later date shall control) from the Surety(ies), the Surety(ies) shall place the total penal sum of the bond guaranteed for the tanks into the standby trust fund as directed by the Department in accordance with 310 CMR 80.60.

The Surety(ies) hereby waive(s) notification of amendments to applicable laws, statutes, rules, and regulations and agrees 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 annual aggregate to the penal sum shown on the face of the bond, but in no event shall the obligation of the Surety(ies) hereunder exceed the amount of said annual aggregate penal sum.

The Surety(ies) may cancel the bond by sending notice of cancellation by certified mail to the Principal, and to the Department at the addresses provided herein; provided, however, that cancellation shall not take effect until at least 120 days after the date of receipt of the notice of cancellation by both the Principal, and the Department as shown by the later return receipt.

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 by the Department for termination of the bond.

In Witness Thereof, the Principal and Surety(ies) have executed this Bond [insert if a corporation: "and have affixed their seals on the date set forth above."]

The individuals 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 310 CMR 80.54(3)(b) as in effect on the date this bond was executed.

Principal

[Signature(s)]

[Names(s)]

[Title(s)]

[Corporate seal if a corporation]

Corporate Surety(ies)

[Name and address]

State of Incorporation: _____________

Liability limit: $__________________

[Signature(s)]

[Names(s) and title(s)]

[Corporate seal if a corporation]

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

Bond premium: $________________

(c) Under the terms of the bond, the surety will become liable on the bond obligation when the Owner or Operator fail to perform as guaranteed by the bond. In all cases, the surety's liability is limited to the per-occurrence and annual aggregate penal sums.

(d) The Owner or Operator who uses a surety bond to satisfy the requirements of 310 CMR 80.52 shall establish a standby trust fund in accordance with 310 CMR 80.55 when the surety bond is acquired. Under the terms of the bond, all amounts paid by the surety under the bond will be deposited directly into the standby trust fund in accordance with instructions from the Department in accordance with 310 CMR 80.60.

(4)Letter of Credit .

(a) An Owner or Operator may satisfy the requirements of 310 CMR 80.52 by obtaining an irrevocable standby letter of credit that conforms to the requirements 310 CMR 80.54(4). The institution issuing the letter of credit shall be an entity that has the authority to issue letters of credit and whose letter-of-credit operations are regulated and examined by The Massachusetts Commissioner of Banks, or the institution shall be a national bank (federally chartered).

(b) The letter of credit shall be worded as follows, except that instructions in brackets shall be replaced with the relevant information and the brackets deleted:

Irrevocable Standby Letter of Credit

[Name and address of issuing institution]

Commissioner

Massachusetts Department of Environmental Protection

One Winter Street

Boston, MA 02108

Attn: UST Program

Dear Sir or Madam: We hereby establish our Irrevocable Standby Letter of Credit No. ___ in your favor, at the request and for the account of [owner name or operator name] of [address] up to the aggregate amount of [in words] U.S. dollars ($[insert dollar amount]), available upon presentation by you or your designee, of (1) your or your designee's sight draft, bearing reference to this letter of credit, No. __, and (2) your or your designee's signed statement reading as follows: "I certify that the amount of the draft is payable pursuant to regulations issued under authority of Massachusetts General Laws Chapter 21O."

This letter of credit may be drawn on to cover the following conditions:

1. [insert: "taking corrective action" and/or "compensating third parties for bodily injury and property damage caused by" either "sudden accidental releases" or "nonsudden accidental releases" or "accidental releases"] arising from operating the tank(s) identified below in the amount of [in words] $[insert dollar amount] per occurrence and [in words] $[insert dollar amount] annual aggregate:

2. There is the commencement of a voluntary or involuntary proceeding under Title 11 (Bankruptcy), U.S. Code, naming the Principal as debtor; or

3. [owner name or operator name], if it has a legal existence, has failed to maintain said legal existence and no successor has assumed its legal obligations in accordance with 310 CMR 80.00.

The letter of credit may not be drawn on to cover any of the following:

(a) Any obligation of [insert "owner" or "operator"] under a workers' compensation, disability benefits, or unemployment compensation law or other similar law;

(b) Bodily injury to an employee of [insert "owner" or "operator"] arising from, and in the course of, employment by [insert "owner" or "operator"];

(c) Bodily injury or property damage arising from the ownership, maintenance, use, or entrustment to others of any aircraft, motor vehicle, or watercraft;

(d) Property damage to any property owned, rented, loaned to, in the care, custody, or control of, or occupied by [insert "owner" or "operator"] that is not the direct result of a release from a petroleum UST; or

(e) Bodily injury or property damage for which [insert "owner" or "operator"] is obligated to pay damages by reason of the assumption of liability in a contract or agreement other than a contract or agreement entered into to meet the requirements of 310 CMR 80.52.

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, unless, at least 120 days before the current expiration date, we notify both you and [owner's name or operator's name] by certified mail 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 or your designee's sight draft within 120 days after the receipt of notification by both you and [insert owner's name or operator's name], as shown on the later of the signed returned receipts.

Whenever this letter of credit is drawn on, under, and in compliance with the terms of this letter of credit, we shall duly honor such draft upon presentation to us, and we shall deposit the amount of the draft directly into the standby trust fund of [owner's name or operator's name] in accordance with you or your designee's instructions.

We certify that the wording of this letter of credit is identical to the wording specified in 310 CMR 80.54(4)(b). as such regulations were constituted on the date shown immediately below.

[Signature(s) and title(s) of official(s) of issuing institution]

[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," or "the Uniform Commercial Code"].

(c) An Owner or Operator who uses a letter of credit to satisfy the requirements of 310 CMR 80.52 shall also establish a standby trust fund in accordance with 310 CMR 80.55 when the letter of credit is acquired. Under the terms of the letter of credit, all amounts paid pursuant to a draft by the Department will be deposited by the issuing institution directly into the standby trust fund in accordance with instructions from the Department in accordance with 310 CMR 80.60.

(d) The letter of credit shall be irrevocable with a term specified by the issuing institution. The letter of credit shall provide that credit be automatically renewed for the same term as the original term, unless, at least 120 days before the current expiration date, the issuing institution notifies the Owner or Operator by certified mail of its decision not to renew the letter of credit. Under the terms of the letter of credit, the 120 days will begin on the date when the Owner or Operator receives the notice, as evidenced by the return receipt.

(5)Trust Fund.

(a) An Owner or Operator may satisfy the requirements of 310 CMR 80.52 by establishing a trust fund in accordance with the terms of 310 CMR 80.54(5) and 80.55. The trustee shall be a bank or other financial institution which has the authority to act as a trustee and whose trust operations are regulated and examined by the Massachusetts Commissioner of Banks, or the trustee shall be a national bank.

(b) The wording of the trust agreement shall be identical to the wording specified in 310 CMR 80.55(2), and the trust agreement shall be accompanied by a formal certification of acknowledgement identical to the wording specified in 310 CMR 80.55(3).

(c) The trust fund, when established, shall be funded for the full required amount of coverage, or funded for part of the required amount of coverage and used in combination with other mechanism(s) that provide the remaining required coverage.

(d) If the value of the trust fund is greater than the required amount of coverage, the Owner or Operator may submit a written request to the Department for release of the excess.

(e) If other financial assurance as specified in 310 CMR 80.54 is substituted for all or part of the trust fund, the Owner or Operator may submit a written request to the Department for release of the excess.

(f) Within 60 days after receiving a request from the Owner or Operator for release of funds as specified in 310 CMR 80.54(5)(d) or (e), the Department shall instruct the trustee to release to the Owner or Operator such funds as the Department specifies in writing.

(6)Local Government Bond Rating Test.

(a) A Local Government Owner or Operator may satisfy the requirements of 310 CMR 80.52 by meeting the Local Government Bond Rating Test in 310 CMR 80.54(6).

(b) A general purpose local government Owner or Operator and/or local government serving as a guarantor may have a current outstanding issue or issues of general obligation bonds of $1 million or more, excluding refunded obligations, with a Moody's rating of Aaa, Aa, A, or Baa, or a Standard & Poor's rating of AAA, AA, A, or BBB. Where a local government has multiple outstanding issues, or where a local government's bonds are rated by both Moody's and Standard and Poor's, the lowest rating shall be used to determine eligibility. Bonds that are backed by credit enhancement other than municipal bond insurance may not be considered in determining the amount of applicable bonds outstanding.

(c) A local government Owner or Operator or local government serving as a guarantor that is not a general-purpose local government and does not have the legal authority to issue general obligation bonds may have a current outstanding issue or issues of revenue bonds of $1 million or more, excluding refunded issues, and by also having a Moody's rating of Aaa, Aa, A, or Baa, or a Standard & Poor's rating of AAA, AA, A, or BBB as the lowest rating for any rated revenue bond issued by the local government. Where bonds are rated by both Moody's and Standard & Poor's, the lower rating for each bond must be used to determine eligibility. Bonds that are backed by credit enhancement may not be considered in determining the amount of applicable bonds outstanding.

(d) The local government Owner or Operator and/or guarantor shall maintain a copy of its bond rating published within the last 12 months by Moody's or Standard & Poor's.

(e) To demonstrate that it meets the local government bond rating test, the chief financial officer of a general purpose local government Owner or Operator and/or guarantor shall sign a letter worded exactly as follows, except that the instructions in brackets are to be replaced by the relevant information and the brackets deleted:

Letter from Chief Financial Officer.

I am the chief financial officer of [insert: name and address of local government owner or operator or guarantor]. This letter is in support of the use of the bond rating test to demonstrate financial responsibility for [insert: "taking corrective action" and/or "compensating third parties for bodily injury and property damage"] caused by [insert: "sudden accidental releases" and/or "nonsudden accidental releases"] in the amount of at least [insert: dollar amount] per occurrence and [insert: dollar amount] annual aggregate arising from operating (an) UST(s).

UST systems at the following facilities are assured by this bond rating test: [List for each facility: the name and address of the facility where tanks are assured by the bond rating test].

The details of the issue date, maturity, outstanding amount, bond rating, and bond rating agency of all outstanding bond issues that are being used by [name of local government owner or operator, or guarantor] to demonstrate financial responsibility are as follows: [complete table]

Issue Date	Maturity Date	Outstanding Amount	Bond Rating	Rating Agency
[insert: "Moody's" or "Standard & Poor's"]

The total outstanding obligation of [insert amount], excluding refunded bond issues, exceeds the minimum amount of $1 million. All outstanding general obligation bonds issued by this government that have been rated by Moody's or Standard & Poor's are rated as at least investment grade (Moody's Baa or Standard & Poor's BBB) based on the most recent ratings published within the last 12 months. Neither rating service has provided notification within the last 12 months of downgrading of bond ratings below investment grade or of withdrawal of bond rating other than for repayment of outstanding bond issues.

I hereby certify that the wording of this letter is identical to the wording specified in 310 CMR 80.54(6)(e) as such regulations were constituted on the date shown immediately below.

[Date]____________________

[Signature]____________________

[Name]____________________

[Title]____________________

(f) To demonstrate that it meets the local government bond rating test, the chief financial officer of local government Owner or Operator and/or guarantor other than a general purpose government shall sign a letter worded exactly as follows, except that the instructions in brackets are to be replaced by the relevant information and the brackets deleted:

Letter from Chief Financial Officer.

I am the chief financial officer of [insert: name and address of local government owner or operator, or guarantor]. This letter is in support of the use of the bond rating test to demonstrate financial responsibility for [insert: "taking corrective action" and/or "compensating third parties for bodily injury and property damage"] caused by ["sudden accidental releases" and/or "nonsudden accidental releases"] in the amount of at least [insert: dollar amount] per occurrence and [insert: dollar amount] annual aggregate arising from operating (an) UST(s). This local government is not organized to provide general governmental services and does not have the legal authority under state law or constitutional provisions to issue general obligation debt.

UST systems at the following facilities are assured by this bond rating test: [List for each facility: the name and address of the facility where tanks are assured by the bond rating test].

The details of the issue date, maturity, outstanding amount, bond rating, and bond rating agency of all outstanding revenue bond issues that are being used by [name of local government owner or operator, or guarantor] to demonstrate financial responsibility are as follows: [complete table]

Issue Date	Maturity Date	Outstanding Amount	Bond Rating	Rating Agency
[insert: "Moody's" or "Standard & Poor's"]

The total outstanding obligation of [insert amount], excluding refunded bond issues, exceeds the minimum amount of $1 million. All outstanding revenue bonds issued by this government that have been rated by Moody's or Standard & Poor's are rated as at least investment grade (Moody's Baa or Standard & Poor's BBB) based on the most recent ratings published within the last 12 months. The revenue bonds listed are not backed by third-party credit enhancement or are insured by a municipal bond insurance company. Neither rating service has provided notification within the last 12 months of downgrading of bond ratings below investment grade or of withdrawal of bond rating other than for repayment of outstanding bond issues.

I hereby certify that the wording of this letter is identical to the wording specified in 310 CMR 80.54(6)(f) as such regulations were constituted on the date shown immediately below.

[Date]____________________

[Signature]____________________

[Name]____________________

[Title]____________________

(g) The Department may require reports of financial condition at any time from the local government Owner or Operator, and/or local government guarantor. If the Department finds, on the basis of such reports or other information, that the local government Owner or Operator, and/or guarantor, no longer meets the local government bond rating test requirements of 310 CMR 80.54(6)(b) through (e), the local government Owner or Operator shall obtain alternative coverage within 30 days after notification of such a finding.

(h) If a local government Owner or Operator using the bond rating test to provide financial assurance finds that it no longer meets the bond rating test requirements, the local government Owner or Operator shall obtain alternative coverage within 150 days of the change in status.

(7)Local Government Fund.

(a) A local government Owner or Operator may satisfy the requirements of 310 CMR 80.52 by establishing a dedicated fund account that conforms to the requirements of 310 CMR 80.54(7). Except as specified 310 CMR 80.54(7)(a)2., a dedicated fund may not be commingled with other funds or otherwise used in normal operations. A dedicated fund will be considered eligible if it meets one of the following requirements:

1. The fund is dedicated by state constitutional provision, or local government statute, charter, ordinance, or order to pay for taking corrective action and for compensating third parties for bodily injury and property damage caused by accidental releases arising from the operation of UST systems and is funded for the full amount of coverage required under 310 CMR 80.52, or funded for part of the required amount of coverage and used in combination with other mechanism(s) that provide the remaining coverage; or

2. The fund is dedicated by state constitutional provision, or local government statute, charter, ordinance, or order as a contingency fund for general emergencies, including taking corrective action and compensating third parties for bodily injury and property damage caused by accidental releases arising from the operation of UST systems, and is funded for five times the full amount of coverage required under 310 CMR 80.52, or funded for five times a portion of the required amount of coverage and used in combination with other mechanism(s) that provide the remaining coverage. If at any time, other than during the pay-in-period defined in 310 CMR 80.54(7)(a)3. the fund is funded for less than five times the amount of coverage required under 310 CMR 80.52, the amount of financial responsibility demonstrated by the fund may not exceed one-fifth the amount in the fund; or

3. The fund is dedicated by state constitutional provision, or local government statute, charter, ordinance or order to pay for taking corrective action and for compensating third parties for bodily injury and property damage caused by accidental releases arising from the operation of UST systems. A payment is made to the fund once every year for seven years until the fund is fully-funded. This seven-year period is hereafter referred to as the "pay-in-period". The amount of each payment must be determined by this formula:

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Where TF is the total required financial assurance for the Owner or Operator, CF is the current amount in the fund, and Y is the number of years remaining in the pay-in-period, and;

a. The local government Owner or Operator has available bonding authority, approved through voter referendum (if such approval is necessary prior to the issuance of bonds), for an amount equal to the difference between the required amount of coverage and the amount held in the dedicated fund. This bonding authority shall be available for taking corrective action and for compensating third parties for bodily injury and property damage caused by accidental releases arising from the operation of petroleum USTs; or

b. The local government Owner or Operator has a letter signed by the appropriate state attorney general stating that the use of the bonding authority will not increase the local government's debt beyond the legal debt ceilings established by the relevant state laws. The letter shall also state that prior voter approval is not necessary before use of the bonding authority.

(b) To demonstrate that it meets the requirements of the local government fund, the chief financial officer of the local government Owner or Operator and/or guarantor must sign a letter worded exactly as follows, except that the instructions in brackets are to be replaced by the relevant information and the brackets deleted:

Letter from Chief Financial Officer.

I am the chief financial officer of [insert: name and address of local government owner or operator, or guarantor]. This letter is in support of the use of the local government fund mechanism to demonstrate financial responsibility for [insert: "taking corrective action" and/or "compensating third parties for bodily injury and property damage"] caused by [insert: "sudden accidental releases" and/or "nonsudden accidental releases"] in the amount of at least [insert: dollar amount] per occurrence and [insert: dollar amount] annual aggregate arising from operating (an) UST(s).

UST systems at the following facilities are assured by this local government fund mechanism: [List for each facility: the name and address of the facility where tanks are assured by the local government fund].

[Insert: "The local government fund is funded for the full amount of coverage required under 310 CMR 80.52, or funded for part of the required amount of coverage and used in combination with other mechanism(s) that provide the remaining coverage" or "The local government fund is funded for ten times the full amount of coverage required under 310 CMR 80.52, or funded for part of the required amount of coverage and used in combination with other mechanisms(s) that provide the remaining coverage" or "A payment is made to the fund once every year for seven years until the fund is fully-funded and [name of local government owner or operator] has available bonding authority, approved through voter referendum, of an amount equal to the difference between the required amount of coverage and the amount held in the dedicated fund" or "A payment is made to the fund once every year for seven years until the fund is fully-funded and I have attached a letter signed by the State Attorney General stating that (1) the use of the bonding authority will not increase the local government's debt beyond the legal debt ceilings established by the relevant state laws and (2) that prior voter approval is not necessary before use of the bonding authority".]

The details of the local government fund are as follows:

Amount in Fund (market value of fund at close of last fiscal year): ______________________

[If fund balance is incrementally funded as specified in 310 CMR 80.54(7)(a)3., insert:

"Amount added to fund in the most recently completed fiscal year: _______________________

Number of years remaining in the pay-in period: __________"]

A copy of the state constitutional provision, or local government statute, charter, ordinance or order dedicating the fund is attached.

I hereby certify that the wording of this letter is identical to the wording specified in 310 CMR 80.54(7)(b) as such regulations were constituted on the date shown immediately below.

[Date]

[Signature]

[Name]

[Title]

(8)Local Government Financial Test.

(a) A Local Government Owner or Operator may satisfy the requirements of 310 CMR 80.52 by passing the financial test specified at 310 CMR 80.54(8). To be eligible to use the financial test, the local government Owner or Operator shall have the ability and authority to assess and levy taxes or to freely establish fees and charges. To pass the local government financial test, the Owner or Operator shall meet the criteria of 310 CMR 80.54(8)(b) and (c) based on year-end financial statements for the latest completed fiscal year.

(b) The local government Owner or Operator shall have the following information available, as shown in the year-end financial statements for the latest completed fiscal year:

1.Total Revenues: Consists of the sum of general fund operating and non-operating revenues including net local taxes, licenses and permits, fines and forfeitures, revenues from use of money and property, charges for services, investment earnings, sales (property, publications, etc.), intergovernmental revenues (restricted and unrestricted), and total revenues from all other governmental funds including enterprise, debt service, capital projects, and special revenues, but excluding revenues to funds held in a trust or agency capacity. For purposes of this test, the calculation of total revenues shall exclude all transfers between funds under the direct control of the local government using the financial test (interfund transfers), liquidation of investments, and issuance of debt.

2.Total Expenditures: Consists of the sum of general fund operating and non-operating expenditures including public safety, public utilities, transportation, public works, environmental protection, cultural and recreational, community development, revenue sharing, employee benefits and compensation, office management, planning and zoning, capital projects, interest payments on debt, payments for retirement of debt principal, and total expenditures from all other governmental funds including enterprise, debt service, capital projects, and special revenues. For purposes of this test, the calculation of total expenditures shall exclude all transfers between funds under the direct control of the local government using the financial test (interfund transfers).

3.Local Revenues: Consists of total revenues (as defined in 310 CMR 80.54(8)(b)1.) minus the sum of all transfers from other governmental entities, including all monies received from Federal, state, or local government sources.

4.Debt Service: Consists of the sum of all interest and principal payments on all long-term credit obligations and all interest-bearing short-term credit obligations. Includes interest and principal payments on general obligation bonds, revenue bonds, notes, mortgages, judgments, and interest bearing warrants. Excludes payments on non-interest-bearing short-term obligations, interfund obligations, amounts owed in a trust or agency capacity, and advances and contingent loans from other governments.

5.Total Funds: Consists of the sum of cash and investment securities from all funds, including general, enterprise, debt service, capital projects, and special revenue funds, but excluding employee retirement funds, at the end of the local government's financial reporting year. Includes Federal securities, Federal agency securities, state and local government securities, and other securities such as bonds, notes and mortgages. For purposes of this test, the calculation of total funds shall exclude agency funds, private trust funds, accounts receivable, value of real property, and other non-security assets.

6. Population consists of the number of people in the area served by the local government.

(c) The local government's year-end financial statements, if independently audited, cannot include an adverse auditor's opinion or a disclaimer of opinion. The local government cannot have outstanding issues of general obligation or revenue bonds that are rated as less than investment grade.

(d) The local government Owner or Operator shall have a letter signed by the chief financial officer worded as specified in 310 CMR 80.54(8)(e).

(e) To demonstrate that it meets the financial test under 310 CMR 80.54(8)(b), the chief financial officer of the local government Owner or Operator, shall sign, within 120 days of the close of each financial reporting year, as defined by the 12-month period for which financial statements used to support the financial test are prepared, a letter worded exactly as follows, except that the instructions in brackets are to be replaced by the relevant information and the brackets deleted:

Letter from Chief Financial Officer.

I am the chief financial officer of [insert: name and address of the owner or operator]. This letter is in support of the use of the local government financial test to demonstrate financial responsibility for [insert: "taking corrective action" and/or "compensating third parties for bodily injury and property damage"] caused by [insert: "sudden accidental releases" and/or "nonsudden accidental releases"] in the amount of at least [insert: dollar amount] per occurrence and [insert: dollar amount] annual aggregate arising from operating (a) UST(s).

UST systems at the following facilities are assured by this financial test [List for each facility: the name and address of the facility where tanks assured by this financial test are located. If separate mechanisms or combinations of mechanisms are being used to assure any of the tanks at this facility, list each tank assured by this financial test by the tank identification number provided in the registration submitted in accordance with 310 CMR 80.23 (1).]

This ["Owner" or "Operator"] has not received an adverse opinion, or a disclaimer of opinion from an independent auditor on its financial statements for the latest completed fiscal year. Any outstanding issues of general obligation or revenue bonds, if rated, have a Moody's rating of Aaa, Aa, A, or Baa or a Standard and Poor's rating of AAA, AA, A, or BBB; if rated by both firms, the bonds have a Moody's rating of Aaa, Aa, A, or Baa and a Standard and Poor's rating of AAA, AA, A, or BBB.

Worksheet for Municipal Financial Test

Part I: Basic Information

1. Total Revenues

a. Revenues (dollars) ______

Value of revenues excludes liquidation of investments and issuance of debt. Value includes all general fund operating and non-operating revenues, as well as all revenues from all other governmental funds including enterprise, debt service, capital projects, and special revenues, but excluding revenues to funds held in a trust or agency capacity.

b. Subtract interfund transfers (dollars)______

c. Total Revenues (dollars)______

2. Total Expenditures

a. Expenditures (dollars) ______

Value consists of the sum of general fund operating and non-operating expenditures including interest payments on debt, payments for retirement of debt principal, and total expenditures from all other governmental funds including enterprise, debt service, capital projects, and special revenues.

b. Subtract interfund transfers (dollars)______

c. Total Expenditures (dollars)______

3. Local Revenues

a. Total Revenues (from 1c) (dollars) ______

b. Subtract total intergovernmental transfers (dollars)______

c. Local Revenues (dollars)______

4. Debt Service

a. Interest and fiscal charges (dollars)______

b. Add debt retirement (dollars)______

c. Total Debt Service (dollars)______

5. Total Funds (Dollars)______

(Sum of amounts held as cash and investment securities from all funds, excluding amounts held for employee retirement funds, agency funds, and trust funds)

6. Population (Persons)______

Part II: Application of Test

7. Total Revenues to Population

a. Total Revenues (from 1c)______

b. Population (from 6)______

c. Divide 7a by 7b ______

d. Subtract 417______

e. Divide by 5,212______

f. Multiply by 4.095______

8. Total Expenses to Population

a. Total Expenses (from 2c)______

b. Population (from 6)______

c. Divide 8a by 8b ______

d. Subtract 524 ______

e. Divide by 5,401______

f. Multiply by 4.095______

9. Local Revenues to Total Revenues

a. Local Revenues (from 3c)______

b. Total Revenues (from 1c)______

c. Divide 9a by 9b ______

d. Subtract .695______

e. Divide by .205______

f. Multiply by 2.840 ______

10. Debt Service to Population

a. Debt Service (from 4d) ______

b. Population (from 6)______

c. Divide 10a by 10b ______

d. Subtract 51 ______

e. Divide by 1,038______

f. Multiply by -1.866______

11. Debt Service to Total Revenues

a. Debt Service (from 4d)______

b. Total Revenues (from 1c)______

c. Divide 11a by 11b ______

d. Subtract .068 ______

e. Divide by .259 ______

f. Multiply by -3.533 ______

12. Total Revenues to Total Expenses

a. Total Revenues (from 1c)______

b. Total Expenses (from 2c)______

c. Divide 12a by 12b______

d. Subtract .910 ______

e. Divide by .899 ______

f. Multiply by 3.458 ______

13. Funds Balance to Total Revenues

a. Total Funds (from 5) ______

b. Total Revenues (from 1c)______

c. Divide 13a by 13b ______

d. Subtract .891 ______

e. Divide by 9.156______

f. Multiply by 3.270 ______

14. Funds Balance to Total Expenses

a. Total Funds (from 5)______

b. Total Expenses (from 2c)______

c. Divide 14a by 14b______

d. Subtract .866 ______

e. Divide by 6.409 ______

f. Multiply by 3.270 ______

15. Total Funds to Population ______

a. Total Funds (from 5) ______

b. Population (from 6)______

c. Divide 15a by 15b ______

d. Subtract 270 ______

e. Divide by 4,548 ______

f. Multiply by 1.866 ______

16. Add 7f + 8f + 9f + 10f + 11f + 12f + 13f + 14f + 15f + 4.937______

I hereby certify that the financial index shown on line 16 of the worksheet is greater than zero and that the wording of this letter is identical to the wording specified in 310 CMR 80.54(8)(e) as such regulations were constituted on the date shown immediately below.

[Date]

[Signature]

[Name]

[Title]

(f) If a local government Owner or Operator using the test to provide financial assurance finds that it no longer meets the requirements of the financial test based on the year-end financial statements, the Owner or Operator shall obtain alternative coverage within 150 days of the end of the year for which financial statements have been prepared.

(g) The Department may require reports of financial condition at any time from the local government Owner or Operator. If the Department finds, on the basis of such reports or other information, that the local government Owner or Operator no longer meets the financial test requirements of 310 CMR 80.54(8)(b) and (c), the Owner or Operator shall obtain alternate coverage within 30 days after notification of such a finding.

(h) If the local government Owner or Operator fails to obtain alternate assurance within 150 days of finding that it no longer meets the requirements of the financial test based on the year-end financial statements or within 30 days of notification by the Department that it no longer meets the requirements of the financial test, the Owner or Operator shall notify the Department of such failure within ten days.

(9)Local Government Guarantee.

(a) A local government Owner or Operator may satisfy the requirements of 310 CMR 80.52 by obtaining a guarantee that conforms to the requirements 310 CMR 80.54(9). The guarantor must be either the state in which the local government Owner or Operator is located or a local government having a "substantial governmental relationship" with the Owner or Operator and issuing the guarantee as an act incident to that relationship. A local government acting as the guarantor shall:

1. Demonstrate that it meets the bond rating test requirement of 310 CMR 80.54(6) and deliver a copy of the chief financial officer's letter as contained in 310 CMR 80.54(6)(d) to the local government Owner or Operator; or

2. Demonstrate that it meets the local government fund requirements of 310 CMR 80.54(7)(a)1., 2. or 3. and deliver a copy of the chief financial officer's letter as contained in 301 CMR 80.54(7)(b) to the local government Owner or Operator; or

3. Demonstrate that it meets the worksheet test requirements of 310 CMR 80.54(8) and deliver a copy of the chief financial officer's letter as contained in 310 CMR 80.54(8)(e) to the local government Owner or Operator.

(b) If the local government guarantor is unable to demonstrate financial assurance under 310 CMR 80.54(6), 80.54(7)(a)1., 2. or 3., or 80.54(8), at the end of the financial reporting year, the guarantor shall send by certified mail, before cancellation or non-renewal of the guarantee, notice to the Owner or Operator and the Department. The guarantee will terminate no less than 120 days after the date the Owner or Operator and the Department receives the notification, as evidenced by the later return receipt. The Owner or Operator shall obtain alternative coverage as specified in 310 CMR 80.57.

(c) The guarantee agreement shall be worded as specified in 310 CMR 80.54(9)(d) or (e) depending on which of the following guarantee arrangements is selected.

1. If, in the default or incapacity of the Owner or Operator, the guarantor guarantees to fund a standby trust as directed by the Department, the guarantee shall be worded as specified in 310 CMR 80.54(9)(d).

2. If, in the default or incapacity of the Owner or Operator, the guarantor guarantees to make payments as directed by the Department for taking corrective action or compensating third parties for bodily injury and property damage, the guarantee shall be worded as specified in 310 CMR 80.54(9)(e).

(d) If the guarantor is a state, the local government guarantee with standby trust shall be worded exactly as follows, except that instructions in brackets are to be replaced with relevant information and the brackets deleted:

Local Government Guarantee with Standby Trust Made by a State

Guarantee made this [date] by [name of state], herein referred to as guarantor, to the Massachusetts Department of Environmental Protection (the Department) and to any and all third parties, and obliges, on behalf of [name of local government owner or operator].

Recitals

(1) Guarantor is a state.

(2) [name of local government owner or operator] ["owns" and/or "operates"]; the following UST system(s) covered by this guarantee: [List the number of tanks at each facility and the name(s) and address(es) of the facility(ies) where the tanks are located. If more than one instrument is used to assure different tanks at any one facility, for each tank covered by this instrument, list the DEP tank identification number provided in the registration submitted in accordance with 310 CMR 80.23(1), and the name and address of the facility.] This guarantee satisfies 310 CMR 80.52 requirements for assuring funding for [insert: "taking corrective action" and/or "compensating third parties for bodily injury and property damage caused by" either "sudden accidental releases" or "nonsudden accidental releases" or "accidental releases"; if coverage is different for different tanks or locations, indicate the type of coverage applicable to each tank or location] arising from operating the above-identified UST(s) in the amount of [insert dollar amount] per occurrence and [insert dollar amount] annual aggregate.

(3) Guarantor guarantees to the Department and to any and all third parties that:

In the event that [name of local government owner or operator] fails to provide alternative coverage within 60 days after receipt of a notice of cancellation of this guarantee and the Department has determined or suspects that a release has occurred at a UST system covered by this guarantee, the guarantor, upon instructions from the Department shall fund a standby trust fund in accordance with the provisions of 310 CMR 80.60, in an amount not to exceed the coverage limits specified above.

In the event that the Department determines that [name of local government owner or operator] has failed to perform corrective action for releases arising out of the operation of the above-identified tank(s) in accordance with M.G.L. c. 21E, 310 CMR 40.0000: Massachusetts Contingency Plan and other applicable laws and regulations, the guarantor upon written instructions from the Department shall fund a standby trust fund in accordance with the provisions of, 310 CMR 80.60 in an amount not to exceed the coverage limits specified above.

If [name of local government owner or operator] fails to satisfy a judgment or award based on a determination of liability for bodily injury or property damage to third parties caused by ["sudden" and/or "nonsudden"] accidental releases arising from the operation of the above-identified tank(s), or fails to pay an amount agreed to in settlement of a claim arising from or alleged to arise from such injury or damage, the guarantor, upon written instructions from the Department, shall fund a standby trust in accordance with the provisions of 310 CMR 80.60 to satisfy such judgment(s), award(s), or settlement agreement(s) up to the limits of coverage specified above.

(4) Guarantor agrees to notify [name of local government owner or operator] and the Department by certified mail of a voluntary or involuntary proceeding under Title 11 (Bankruptcy), U.S. Code naming guarantor as debtor, within ten days after commencement of the proceeding.

(5) Guarantor agrees to remain bound under this guarantee notwithstanding any modification or alteration of any obligation of [name of local government owner or operator] pursuant to 310 CMR 80.00.

(7) The guarantor's obligation does not apply to any of the following:

(a) Any obligation of [name of local government owner or operator] under a workers' compensation, disability benefits, or unemployment compensation law or other similar law;

(b) Bodily injury to an employee of [name of local government owner or operator] arising from, and in the course of, employment by [name of local government owner or operator];

(c) Bodily injury or property damage arising from the ownership, maintenance, use, or entrustment to others of any aircraft, motor vehicle, or watercraft;

(d) Property damage to any property owned, rented, loaded to, in the care, custody, or control of, or occupied by [name of local government owner or operator] that is not the direct result of a release from a UST system;

(e) Bodily damage or property damage for which [name of local government owner or operator] is obligated to pay damages by reason of the assumption of liability in a contract or agreement other than a contract or agreement entered into to meet the requirements of 310 CMR 80.52.

(8) Guarantor expressly waives notice of acceptance of this guarantee by the Department, by any or all third parties, or by [name of local government owner or operator],

I hereby certify that the wording of this guarantee is identical to the wording specified in 310 CMR 80.54(9)(d) as such regulations were constituted on the effective date shown immediately below.

Effective date:____________________

[Name of guarantor]

[Authorized signature for guarantor]

[Name of person signing]

[Title of person signing]

[Signature of witness or notary]

(e) If the guarantor is a local government, the local government guarantee with standby trust must be worded exactly as follows, except that instructions in brackets are to be replaced with relevant information and the brackets deleted:

Local Government Guarantee with Standby Trust Made by a Local Government

Guarantee made this [date] by [name of guaranteeing entity], a local government organized under the laws of Massachusetts, herein referred to as guarantor, to the Massachusetts Department of Environmental Protection (the Department) and to any and all third parties, and obliges, on behalf of [name of local government owner or operator].

Recitals

(1) Guarantor meets or exceeds [select one: "the local government bond rating test requirements 310 CMR 80.54(6) ", or "the local government financial test requirements of 310 CMR 80.54(8) ", or the local government fund under 310 CMR 80.54(7)(a)1., 2. or 3].

(2) [name of local government owner or operator] ["owns" or "operates] the following UST system(s) covered by this guarantee: [List the number of tanks at each facility and the name(s) and address(es) of the facility(ies) where the tanks are located. If more than one instrument is used to assure different tanks at any one facility, for each tank covered by this instrument, list the DEP tank identification number provided in the registration submitted in accordance with 310 CMR 80.23(1), and the name and address of the facility.] This guarantee satisfies 310 CMR 80.51 through 80.63 for assuring funding for [insert: "taking corrective action" and/or "compensating third parties for bodily injury and property damage caused by" either "sudden accidental releases" or "nonsudden accidental releases" or "accidental releases"; if coverage is different for different tanks or locations, indicate the type of coverage applicable to each tank or location] arising from operating the above-identified UST(s) in the amount of [insert dollar amount] per occurrence and [insert dollar amount] annual aggregate.

(3) Incident to our substantial governmental relationship with [name of local government owner or operator], guarantor guarantees to the Department and to any and all third parties and obliges that:

In the event that [name of local government owner or operator] fails to provide alternative coverage within 60 days after receipt of a notice of cancellation of this guarantee and the Department has determined or suspects that a release has occurred at a UST covered by this guarantee, the guarantor, upon instructions from the Department shall fund a standby trust fund in accordance with the provisions of 310 CMR 80.60, in an amount not to exceed the coverage limits specified above.

In the event that the Department determines that [name of local government owner or operator] has failed to perform corrective action for releases arising out of the operation of the above-identified tank(s) in accordance with M.G.L. c. 21E, 310 CMR 40.0000: Massachusetts Contingency Plan and other applicable laws and regulations, the guarantor upon written instructions from the Department shall fund a standby trust fund in accordance with the provisions of 310 CMR 80.60, in an amount not to exceed the coverage limits specified above.

(4) Guarantor agrees that, if at the end of any fiscal year before cancellation of this guarantee, the guarantor fails to meet or exceed the requirements of the financial responsibility mechanism specified in paragraph (1), guarantor shall send within 120 days of such failure, by certified mail, notice to [name of local government owner or operator] and the Department, as evidenced by the return receipt.

(5) Guarantor agrees to notify [name of local government owner or operator] and the Department by certified mail of a voluntary or involuntary proceeding under Title 11 (Bankruptcy), U.S. Code naming guarantor as debtor, within ten days after commencement of the proceeding.

(6) Guarantor agrees to remain bound under this guarantee notwithstanding any modification or alteration of any obligation of [name of local government owner or operator] pursuant to 310 CMR 80.00.

(7) Guarantor agrees to remain bound under this guarantee for so long as [name of local government owner or operator] shall comply with the applicable financial responsibility requirements of 310 CMR 80.51 through 80.63 for the above identified tank(s), except that guarantor may cancel this guarantee by sending notice by certified mail to [name of local government owner or operator] and the Department, such cancellation to become effective no earlier than 120 days after receipt of such notice by [name of local government owner or operator], as evidenced by the later return receipt.

(8) The guarantor's obligation does not apply to any of the following:

(a) Any obligation of [name of local government owner or operator] under a workers' compensation, disability benefits, or unemployment compensation law or other similar law;

(b) Bodily injury to an employee of [name of local government owner or operator] arising from, and in the course of, employment by [name of local government owner or operator];

(c) Bodily injury or property damage arising from the ownership, maintenance, use, or entrustment to others of any aircraft, motor vehicle, or watercraft;

(d) Property damage to any property owned, rented, loaned to, in the care, custody, or control of, or occupied by [name of local government owner or operator] that is not the direct result of a release from a UST system;

(9) Guarantor expressly waives notice of acceptance of this guarantee by the Department, by any or all third parties, or by [name of local government owner or operator].

I hereby certify that the wording of this guarantee is identical to the wording specified in 310 CMR 80.54(9)(e) as such regulations were constituted on the effective date shown immediately below.

Effective date:____________________

[Name of guarantor]

[Authorized signature for guarantor]

[Name of person signing]

[Title of person signing]

[Signature of witness or notary]

_________________________________________

(f) If the guarantor is a state, the local government guarantee without standby trust must be worded exactly as follows, except that instructions in brackets are to be replaced with relevant information and the brackets deleted:

Local Government Guarantee without Standby Trust Made by a State

Guarantee made this [date] by Massachusetts, herein referred to as guarantor, to the Massachusetts Department of Environmental Protection (the Department) and to any and all third parties, and obliges, on behalf of [name of local government owner or operator].

Recitals

(1) Guarantor is a state.

(2) [name of local government owner or operator] ["owns" or "operates" the following UST system(s) covered by this guarantee: [List the number of tanks at each facility and the name(s) and address(es) of the facility(ies) where the tanks are located. If more than one instrument is used to assure different tanks at any one facility, for each tank covered by this instrument, list the DEP tank identification number provided in the registration submitted in accordance with 310 CMR 80.23(1), and the name and address of the facility.] This guarantee satisfies 310 CMR 80.52 requirements for assuring funding for [insert: "taking corrective action" and/or "compensating third parties for bodily injury and property damage caused by" either "sudden accidental releases" or "nonsudden accidental releases" or "accidental releases"; if coverage is different for different tanks or locations, indicate the type of coverage applicable to each tank or location] arising from operating the above-identified UST(s) in the amount of [insert dollar amount] per occurrence and [insert dollar amount] annual aggregate.

(3) Guarantor guarantees to the Department and to any and all third parties and obliges that:

In the event that [name of local government owner or operator] fails to provide alternative coverage within 60 days after receipt of a notice of cancellation of this guarantee and the Department has determined or suspects that a release has occurred at a UST system covered by this guarantee, the guarantor, upon written instructions from the Department shall make funds available to pay for corrective actions and compensate third parties for bodily injury and property damage in an amount not to exceed the coverage limits specified above.

In the event that the Department determines that [name of local government owner or operator] has failed to perform corrective action for releases arising out of the operation of the above-identified tank(s) in accordance with M.G.L. c. 21E, 310 CMR 40.0000: Massachusetts Contingency Plan and other applicable laws and regulations, the guarantor upon written instructions from the Department shall make funds available to pay for corrective actions in an amount not to exceed the coverage limits specified above.

If [name of local government owner or operator] fails to satisfy a judgment or award based on a determination of liability for bodily injury or property damage to third parties caused by ["sudden" and/or "nonsudden"] accidental releases arising from the operation of the above-identified tank(s), or fails to pay an amount agreed to in settlement of a claim arising from or alleged to arise from such injury or damage, the guarantor, upon written instructions from the Department, shall make funds available to compensate third parties for bodily injury and property damage in an amount not to exceed the coverage limits specified above.

(6) Guarantor agrees to remain bound under this guarantee for so long as [name of local government owner or operator] shall comply with the applicable financial responsibility requirements of 310 CMR 80.51 through 80.63 for the above identified tank(s), except that guarantor may cancel this guarantee by sending notice by certified mail to [name of local government owner or operator] and the Department, such cancellation to become effective no earlier than 120 days after receipt of such notice by [name of local government owner or operator] and the Department, as evidenced by the later return receipt. If notified of a probable release, the guarantor agrees to remain bound to the terms of this guarantee for all charges arising from the release, up to the coverage limits specified above, notwithstanding the cancellation of the guarantee with respect to future releases.

(7) The guarantor's obligation does not apply to any of the following:

(a) Any obligation of [name of local government owner or operator] under a workers' compensation disability benefits, or unemployment compensation law or other similar law;

(b) Bodily injury to an employee of [name of local government owner or operator] arising from, and in the course of, employment by [name of local government owner or operator];

(c) Bodily injury or property damage arising from the ownership, maintenance, use, or entrustment to others of any aircraft, motor vehicle, or watercraft;

(8) Guarantor expressly waives notice of acceptance of this guarantee by the Department, by any or all third parties, or by [name of local government owner or operator].

I hereby certify that the wording of this guarantee is identical to the wording specified in 310 CMR 80.54(9)(f) as such regulations were constituted on the effective date shown immediately below.

Effective date:____________________

[Name of guarantor]

[Authorized signature for guarantor]

[Name of person signing]

[Title of person signing]

[Signature of witness or notary]

(g) If the guarantor is a local government, the local government guarantee without standby trust must be worded exactly as follows, except that instructions in brackets are to be replaced with relevant information and the brackets deleted:

Local Government Guarantee without Standby Trust Made by a Local Government

Recitals

(1) Guarantor meets or exceeds [select one: "the local government bond rating test requirements of 310 CMR 80.54(6) " or "the local government financial test requirements of 310 CMR 80.54(8) " or "the local government fund under 310 CMR 80.54(7)(a)1., 2. or 3."]

(2) [name of local government owner or operator] ["owns" or "operates"] the following UST system(s) covered by this guarantee: [List the number of tanks at each facility and the name(s) and address(es) of the facility(ies) where the tanks are located. If more than one instrument is used to assure different tanks at any one facility, for each tank covered by this instrument, list the DEP tank identification number provided in the registration submitted in accordance with 310 CMR 80.23(1), and the name and address of the facility.] This guarantee satisfies 310 CMR 80.51 through 80.63 for assuring funding for [insert: "taking corrective action" and/or "compensating third parties for bodily injury and property damage caused by" either "sudden accidental releases" or "nonsudden accidental releases" or "accidental releases"; if coverage is different for different tanks or locations, indicate the type of coverage applicable to each tank or location] arising from operating the above-identified UST(s) in the amount of [insert: dollar amount] per occurrence and [insert dollar amount] annual aggregate.

In the event that [name of local government owner or operator] fails to provide alternative coverage within 60 days after receipt of a notice of cancellation of this guarantee and the Department has determined or suspects that a release has occurred at a UST covered by this guarantee, the guarantor, upon written instructions from the Department shall make funds available to pay for corrective actions and compensate third parties for bodily injury and property damage in an amount not to exceed the coverage limits specified above.

In the event that the Department determines that [name of local government owner or operator] has failed to perform corrective action for releases arising out of the operation of the above-identified tank(s) in accordance with M.G.L. c. 21E, 310 CMR 40.0000: Massachusetts Contingency Plan and other applicable laws and regulations, the guarantor upon written instructions from the Department shall make funds available to pay for corrective actions in an amount not to exceed the coverage limits specified above.

If [name of local government owner or operator] fails to satisfy a judgment or award based on a determination of liability for bodily injury or property damage to third parties caused by ["sudden" and/or "nonsudden"] accidental releases arising from the operation of the above-identified tank(s), or fails to pay an amount agreed to in settlement of a claim arising from or alleged to arise from such injury or damage, the guarantor, upon written instructions from the Department, shall make funds available to compensate third parties for bodily injury and property damage in an amount not to exceed the coverage limits specified above.

(4) Guarantor agrees that if at the end of any fiscal year before cancellation of this guarantee, the guarantor fails to meet or exceed the requirements of the financial responsibility mechanism specified in paragraph (1), guarantor shall send within 120 days of such failure, by certified mail, notice to [name of local government owner or operator] and the Department, as evidenced by the return receipt.

(7) Guarantor agrees to remain bound under this guarantee for so long as [local government owner or operator] shall comply with the applicable financial responsibility requirements of 310 CMR 80.51 through 80.63 for the above identified tank(s), except that guarantor may cancel this guarantee by sending notice by certified mail to [owner or operator] and the Department, such cancellation to become effective no earlier than 120 days after receipt of such notice by [name of local government owner or operator], as evidenced by the later return receipt. If notified of a probable release, the guarantor agrees to remain bound to the terms of this guarantee for all charges arising from the release, up to the coverage limits specified above, notwithstanding the cancellation of the guarantee with respect to future releases.

(8) The guarantor's obligation does not apply to any of the following:

(a) Any obligation of [name of local government owner or operator] under a workers' compensation disability benefits, or unemployment compensation law or other similar law; (b) Bodily injury to an employee of [name of local government owner or operator] arising from, and in the course of, employment by [name of local government owner or operator];

(c) Bodily injury or property damage arising from the ownership, maintenance, use, or entrustment to others of any aircraft, motor vehicle, or watercraft;

(9) Guarantor expressly waives notice of acceptance of this guarantee by the Department, by any or all third parties, or by [name of local government owner or operator],

I hereby certify that the wording of this guarantee is identical to the wording specified in 310 CMR 80.54(9)(g) as such regulations were constituted on the effective date shown immediately below.

Effective date:____________________

[Name of guarantor]

[Authorized signature for guarantor]

[Name of person signing]

[Title of person signing]

[Signature of witness or notary]

(10)Financial Test of Self-insurance.

(a) An Owner or Operator, and/or guarantor, may satisfy the requirements of 310 CMR 80.52 by passing a financial test as specified in 310 CMR 80.54(10). To pass the financial test of self-insurance, the Owner or Operator, and/or guarantor shall meet the criteria of 310 CMR 80.54(10)(b) or (c) based on independently audited year-end financial statements for the latest completed fiscal year.

(b) The Owner or Operator, and/or guarantor shall meet all the following criteria:

1. Have a tangible net worth of at least ten times:

a. The total of the applicable aggregate amount required by 310 CMR 80.52, based on the number of UST system tanks for which a financial test is used to demonstrate financial responsibility to the Department.

b. The sum of the corrective action cost estimates, the current closure and post-closure care cost estimates, and amount of liability coverage for which a financial test is used to demonstrate financial responsibility to the Department under 310 CMR 30.000: Hazardous Waste; and

2. Have a tangible net worth of at least $10 million.

3. Have a letter signed by the chief financial officer worded as specified 310 CMR 80.54(10)(d).

4. Comply with one of the following:

a. File financial statements annually with the U.S. Securities and Exchange Commission, the Energy Information Administration, or the Rural Electrification Administration; or

b. Report annually the firm's tangible net worth to Dun and Bradstreet, and have an assigned Dun and Bradstreet financial strength rating of 4A or 5A.

5. The firm's year-end financial statements, which shall be independently audited, cannot include an adverse auditor's opinion, a disclaimer of opinion, or a "going concern" qualification.

(c) The Owner or Operator, and/or guarantor shall meet the financial test requirements of 40 CFR 264.147(f)(1), substituting the appropriate amounts specified in 310 CMR 80.52(3)(a) and (b) for the "amount of liability coverage" each time specified in that section.

1. The fiscal year-end financial statements of the Owner or Operator, and/or guarantor, shall be examined by an independent certified public accountant and be accompanied by the accountant's report of the examination.

2. The firm's year-end financial statements cannot include an adverse auditor's opinion, a disclaimer of opinion, or a "going concern" qualification.

3. The Owner or Operator, and/or guarantor, shall have a letter signed by the chief financial officer, worded as specified in 310 CMR 80.54(10)(d).

4. If the financial statements of the Owner or Operator, and/or guarantor, are not submitted annually to the U.S. Securities and Exchange Commission, the Energy Information Administration or the Rural Electrification Administration, the Owner or Operator, and/or guarantor, shall obtain a special report by an independent certified public accountant stating that:

a. He or she has compared the data that the letter from the chief financial officer specifies as having been derived from the latest year-end financial statements of the owner or operator, and/or guarantor, with the amounts in such financial statements; and

b. In connection with that comparison, no matters came to his attention which caused him to believe that the specified data should be adjusted.

(d) To demonstrate that it meets the financial test under paragraph 310 CMR 80.54(10)(b) or (c), the chief financial officer of the Owner or Operator, or guarantor, shall sign, within 120 days of the close of each financial reporting year, as defined by the 12-month period for which financial statements used to support the financial test are prepared, a letter worded exactly as follows, except that the instructions in brackets are to be replaced by the relevant information and the brackets deleted:

LETTER FROM CHIEF FINANCIAL OFFICER

I am the chief financial officer of [insert: name and address of the owner or operator, or guarantor]. This letter is in support of the use of [insert: "the financial test of self-insurance," and/or "guarantee"] to demonstrate financial responsibility for [insert: "taking corrective action" and/or "compensating third parties for bodily injury and property damage"] caused by [insert: "sudden accidental releases" and/or "nonsudden accidental releases"] in the amount of at least [insert dollar amount] per occurrence and [insert: dollar amount] annual aggregate arising from operating (an) underground storage tank system(s).

Underground storage tank systems at the following facilities are assured by this financial test by this ["owner or operator," and/or "guarantor"]: [List for each facility: the name and address of the facility where tanks assured by this financial test are located, and whether tanks are assured by this financial test. If separate mechanisms or combinations of mechanisms are being used to assure any of the tanks at this facility, list each tank assured by this financial test by the tank identification number provided in the registration submitted pursuant to 310 CMR 80.23. The financial test of self-insurance cannot be combined with a corporate guarantee where the financial statements of the owner or operator and guarantor are consolidated].

A ["financial test," and/or "guarantee"] is also used by this [insert: "owner or operator," or "guarantor"] to demonstrate evidence of financial responsibility in the following amounts under 40 CFR Parts 271 and 145.

*EPA Regulations*	*Amount*
Closure (§§ 264.143 and 265.143)	$
Post-closure Care (§§ 264.145 and 265.145)	$
Liability Coverage (§§ 264.147 and 265.147)	$
Corrective Action (§ 264.101(b)	$
Plugging and Abandonment (§ 144.63)	$
Closure	$
Post-closure Care	$
Liability Coverage	$
Corrective Action	$
Plugging and Abandonment	$
Total	$

This [insert: "owner or operator," or "guarantor"] has not received an adverse opinion, a disclaimer of opinion, or a "going concern" qualification from an independent auditor on his financial statements for the latest completed fiscal year.

[Fill in the information for Alternative I if the criteria of 310 CMR 80.54(10)(b) are being used to demonstrate compliance with the financial test requirements. Fill in the information for Alternative II if the criteria of 310 CMR 80.54(10)(c) are being used to demonstrate compliance with the financial test requirements.]

Alternative I

1.	Amount of annual UST aggregate coverage being assured by a financial test, and/or guarantee	$_______
2.	Amount of corrective action, closure and post-closure care costs, liability coverage, and plugging and abandonment costs covered by a financial test, and/or guarantee	$_______
3.	Sum of lines 1. and 2.	$_______
4.	Total tangible assets	$_______
5.	Total liabilities [if any of the amount reported on line 3. is included in total liabilities, you may deduct that amount from this line and add that amount to line 6.]	$_______
6.	Tangible net worth [subtract line 5. from line 4.]	$_______
YES NO
7.	Is line 6. at least $10 million?	______ _____
8.	Is line 6. at least 10 times line 3.?	______ _____
9.	Have financial statements for the latest fiscal year been filed with the Securities and Exchange Commission?	______ _____
10.	Have financial statements for the latest fiscal year been filed with the Energy Information Administration?	______ _____
11.	Have financial statements for the latest fiscal year been filed with the Rural Electrification Administration?	______ _____
12.	Has financial information been provided to Dun and Bradstreet, and has Dun and Bradstreet provided a financial strength rating of 4A or 5A? [Answer "Yes" only if both criteria have been met.]	______ _____

Alternative II

1.	Amount of annual UST aggregate coverage being assured by a test, and/or guarantee	$_______
2.	Amount of corrective action, closure and post-closure care costs, liability coverage, and plugging and abandonment costs covered by a financial test, and/or guarantee	$_______
3.	Sum of lines 1. and 2.	$_______
4.	Total tangible assets	$_______
5.	Total liabilities [if any of the amount reported on line 3. is included in total liabilities, you may deduct that amount from this line and add that amount to line 6.]	$_______
6.	Tangible net worth [subtract line 5. from line 4.]	$_______
7.	Total assets in the U.S. [required only if less than 90% of assets are located in the U.S.]	$_______
		YES NO
8.	Is line 6. at least $10 million?	$____ ____
9.	Is line 6. at least 6 times line 3?	______ _____
10.	Are at least 90% of assets located in the U.S.? [If "No," complete line 11.]	______ _____
11.	Is line 7. at least 6. times line 3?	______ _____
[Fill in either lines 12. through 15. or lines 16. through 18.:]
12.	Current assets	$_______
13.	Current liabilities	_______
14.	Net working capital [subtract line 13. from line 12.]	_______
		YES NO
15.	Is line 14. at least 6 times line 3?	______ _____
16.	Current bond rating of most recent bond issue	______ _____
17.	Name of rating service	______ _____
18.	Date of maturity of bond	______ _____
19.	Have financial statements for the latest fiscal year been filed with the SEC, the Energy Information Administration, or the Rural Electrification Administration?	______ _____

[If "No," please attach a report from an independent certified public accountant certifying that there are no material differences between the data as reported in lines 4-18 above and the financial statements for the latest fiscal year.]

[For both Alternative I and Alternative II complete the certification with this statement.]

I hereby certify under penalty of law that:

(i) the ["Owner or Operator", or "guarantor"] passes ["Alternative" I or "Alternative II"] of the Financial Test of Self Insurance;

(ii) that the wording of this letter is identical to the wording specified in 310 CMR 80.54(10)(d) as such regulations were constituted on the date shown immediately below;

(iii) I have personally examined and am familiar with the information submitted in this document and all attachments and that, based on my inquiry of those individuals immediately responsible for obtaining the information, I believe that the information is true, accurate, and complete. I am aware that there are significant penalties for submitting false information, including possible fines and imprisonment.

[Signature]

[Name]

[Title]

[Date]

(e) If an Owner or Operator using the test to provide financial assurance finds that he or she no longer meets the requirements of the financial test based on the year-end financial statements, the Owner or Operator shall obtain alternative coverage within 150 days of the end of the year for which financial statements have been prepared.

(f) The Department may require reports of financial condition at any time from the Owner or Operator, and/or guarantor. If the Department, on the basis of such reports or other information, determines that the Owner or Operator, and/or guarantor, no longer meets the financial test requirements of 310 CMR 80.54(10)(b) or (c) and (d), the Owner or Operator shall obtain alternate coverage within 30 days after notification of such a finding.

(g) If the Owner or Operator fails to obtain alternate assurance within 150 days of finding that he or she no longer meets the requirements of the financial test based on the year-end financial statements, or within 30 days of notification by the Department that he or she no longer meets the requirements of the financial test, the Owner or Operator shall notify the Department of such failure within ten days.

(11)Guarantee.

(a) An Owner or Operator may meet the requirements of 310 CMR 80.52 by obtaining a guarantee that conforms to the requirements of 310 CMR 80.54(11).

1. The guarantor shall be:

a. A firm that:

i. possesses a controlling interest in the Owner or Operator;

ii. possesses a controlling interest in a firm described under 310 CMR 80.54(11)(a)1.a.i.; or

iii. is controlled through stock ownership by a common parent firm that possesses a controlling interest in the owner or operator; or

b. A firm engaged in a substantial business relationship with the Owner or Operator and issuing the guarantee as an act incident to that business relationship.

(b) Within 120 days of the close of each financial reporting year, the guarantor shall demonstrate that it meets the financial test criteria of 310 CMR 80.54(10) based on year-end financial statements for the latest completed financial reporting year by completing the letter from the chief financial officer described in 310 CMR 80.54(10)(d) and shall deliver the letter to the Owner or Operator. If the guarantor fails to meet the requirements of the financial test at the end of any financial reporting year, within 120 days of the end of that financial reporting year the guarantor shall send by certified mail, before cancellation or nonrenewal of the guarantee, notice to the Owner or Operator. If the Department notifies the guarantor that s/he no longer meets the requirements of the financial test of 310 CMR 80.54(10)(b) or (c) and (d), the guarantor shall notify the Owner or Operator within ten days of receiving such notification from the Department. In both cases, the guarantee will terminate no less than 120 days after the date the Owner or Operator receives the notification, as evidenced by the return receipt. The Owner or Operator shall obtain alternative coverage as specified in 310 CMR 80.57.

(c) The guarantee shall be worded as follows, except that instructions in brackets are to be replaced with the relevant information and the brackets deleted:

GUARANTEE

Guarantee made this [date] by [name of guaranteeing entity], a business entity organized under the laws of the state of [name of state], herein referred to as guarantor, to the Massachusetts Department of Environmental Protection and to any and all third parties, and obligees, on behalf of ["owner" or "operator"] of [business address].

Recitals.

(1) Guarantor meets or exceeds the financial test criteria of 310 CMR 80.54(10)(b) or (c) and (d) and agrees to comply with the requirements for guarantors as specified in 310 CMR 80.54(11)(b).

(2) ["Owner" or "operator"] owns or operates the following underground storage tank systems(s) covered by this guarantee: [List the number of tanks at each facility and the name(s) and address(es) of the facility(ies) where the tanks are located. If more than one instrument is used to assure different tanks at any one facility, for each tank covered by this instrument, list the tank identification number provided in the registration submitted pursuant to 310 CMR 80.23, and the name and address of the facility.] [The guarantee cannot be combined with a financial test of self-insurance where the financial statements of the owner or operator and guarantor are consolidated.] This guarantee satisfies 310 CMR 80.51 through 80.63 requirements for assuring funding for [insert: "taking corrective action" and/or "compensating third parties for bodily injury and property damage caused by" either "sudden accidental releases" or "nonsudden accidental releases" or "accidental releases"; if coverage is different for different tanks or locations, indicate the type of coverage applicable to each tank or location] arising from operating the above-identified underground storage tank systems(s) in the amount of [insert dollar amount] per occurrence and [insert dollar amount] annual aggregate.

(3) [Insert appropriate phrase: "On behalf of our subsidiary" (if guarantor is corporate parent of the owner or operator); or "On behalf of our affiliate" (if guarantor is a related firm of the owner or operator); or "Incident to our business relationship with" (if guarantor is providing the guarantee as an incident to a substantial business relationship with owner or operator)] ["owner" or "operator"], guarantor guarantees to the Massachusetts Department of Environmental Protection and to any and all third parties that:

In the event that ["owner" or "operator"] fails to provide alternative coverage within 60 days after receipt of a notice of cancellation of this guarantee and the Massachusetts Department of Environmental Protection has determined or suspects that a release has occurred at an underground storage tank system covered by this guarantee, the guarantor, upon instructions from the Massachusetts Department of Environmental Protection, shall fund a standby trust fund in accordance with the provisions of 310 CMR 80.60 in an amount not to exceed the coverage limits specified above.

In the event that the Massachusetts Department of Environmental Protection determines that ["owner" or "operator"] has failed to perform corrective action for releases arising out of the operation of the above-identified tank(s) in accordance with 310 CMR 40.0000: Massachusetts Contingency Plan, the guarantor upon written instructions from the Massachusetts Department of Environmental Protection shall fund a standby trust in accordance with the provisions of 310 CMR 80.60 in an amount not to exceed the coverage limits specified above.

If ["owner" or "operator"] fails to satisfy a judgment or award based on a determination of liability for bodily injury or property damage to third parties caused by ["sudden" and/or "nonsudden"] accidental releases arising from the operation of the above-identified tank(s), or fails to pay an amount agreed to in settlement of a claim arising from or alleged to arise from such injury or damage, the guarantor, upon written instructions from the Massachusetts Department of Environmental Protection, shall fund a standby trust in accordance with the provisions of 310 CMR 80.60 to satisfy such judgment(s), award(s), or settlement agreement(s) up to the limits of coverage specified above.

(4) Guarantor agrees that if, at the end of any fiscal year before cancellation of this guarantee, the guarantor fails to meet the financial test criteria of 310 CMR 80.54(10)(b) or (c) and (d), guarantor shall send within 120 days of such failure, by certified mail, notice to ["owner" or "operator"]. The guarantee will terminate 120 days from the date of receipt of the notice by ["owner" or "operator"], as evidenced by the return receipt.

(5) Guarantor agrees to notify ["owner" or "operator"] by certified mail of a voluntary or involuntary proceeding under Title 11 (Bankruptcy), U.S. Code naming guarantor as debtor, within ten days after commencement of the proceeding.

(6) Guarantor agrees to remain bound under this guarantee notwithstanding any modification or alteration of any obligation of ["owner" or "operator"] pursuant to 310 CMR 80.00.

(7) Guarantor agrees to remain bound under this guarantee for so long as ["owner" or "operator"] must comply with the applicable financial responsibility requirements of 310 CMR 80.51 through 80.63 for the above-identified tank(s), except that guarantor may cancel this guarantee by sending notice by certified mail to ["owner" or "operator"], such cancellation to become effective no earlier than 120 days after receipt of such notice by ["owner" or "operator"], as evidenced by the return receipt.

(8) The guarantor's obligation does not apply to any of the following:

(a) Any obligation of ["owner" or "operator"] under a workers' compensation, disability benefits, or unemployment compensation law or other similar law;

(b) Bodily injury to an employee of ["owner" or "operator"] arising from, and in the course of, employment by ["owner" or "operator"];

(c) Bodily injury or property damage arising from the ownership, maintenance, use, or entrustment to others of any aircraft, motor vehicle, or watercraft;

(d) Property damage to any property owned, rented, loaded to, in the care, custody, or control of, or occupied by ["owner" or "operator"] that is not the direct result of a release from an underground storage tank system;

(e) Bodily damage or property damage for which ["owner" or "operator"] is obligated to pay damages by reason of the assumption of liability in a contract or agreement other than a contract or agreement entered into to meet the requirements of 310 CMR 80.52.

(9) Guarantor expressly waives notice of acceptance of this guarantee by the Massachusetts Department of Environmental Protection, by any or all third parties, or by ["owner" or "operator"]. by signing the following certification.

I hereby certify that:

(i) the wording of this guarantee is identical to the wording specified in 310 CMR 80.54(11)(c) as such regulations were constituted on the effective date shown immediately below; and

(ii) I have personally examined and am familiar with the information submitted in this document and all attachments and that, based on my inquiry of those individuals immediately responsible for obtaining the information, I believe that the information is true, accurate, and complete. I am aware that there are significant penalties for submitting false information, including possible fines and imprisonment.

Effective date:

[Name of guarantor]

[Authorized signature for guarantor]

[Name of person signing]

[Title of person signing]

[Signature of witness or notary]

(d) An Owner or Operator who uses a guarantee to satisfy the requirements of 310 CMR 80.52 shall establish a standby trust fund when the guarantee is obtained. Under the terms of the guarantee, all amounts paid by the guarantor under the guarantee will be deposited directly into the standby trust fund in accordance with instructions from the Department of Environmental Protections under 310 CMR 80.60. This standby trust fund must meet the requirements specified in 310 CMR 80.55.

310 CMR, § 80.54

Adopted by Mass Register Issue S1277, eff. 1/2/2015.

Amended by Mass Register Issue 1453, eff. 10/1/2021.