Section 80.60 - Requirements for Drawing on Financial Assurance Mechanisms(1) Except as specified in 310 CMR 80.60(4), the Department shall direct the Trustee to require the guarantor, surety, or institution issuing a letter of credit to place the amount of funds stipulated by the Department, up to the limit of funds provided by the financial assurance mechanism, into the standby trust if:(a) The Owner or Operator fails to establish alternate financial assurance in accordance with 310 CMR 80.57 within 60 days after receiving notice of termination of the guarantee, surety bond, letter of credit, or, as applicable, other financial assurance mechanism; and(b) The Department determines or suspects in its discretion that a release from a UST system covered by the mechanism has occurred and so notifies the Owner or Operator or the Owner or Operator has notified the Department of a release from a UST system covered by the mechanism; or(c) The commencement of a voluntary or involuntary proceeding under Title 11 (Bankruptcy), U.S. Code, naming an Owner or Operator as debtor; or(d) The Owner or Operator has a legal existence and has failed to maintain said legal existence and no successor has assumed its legal obligations in accordance with 310 CMR 80.00; or(e) The conditions of 310 CMR 80.60(2)(a) or (2)(b)1. or 2. are satisfied.(2) The Department may draw on a standby trust fund when: (a) The Department makes a determination in its discretion that a release has occurred and immediate or long-term corrective action for the release is needed, and the Owner or Operator has not conducted response action; or(b) The Department has received either: 1. Certification from the Owner or Operator and the third-party liability claimant(s) and from attorneys representing the Owner or Operator and the third-party liability claimant(s) that a third-party liability claim should be paid. The certification shall be worded as follows, except that instructions in brackets are to be replaced with the relevant information and the brackets deleted: Certification of Valid Claim
The undersigned, as principals and as legal representatives of [insert: "owner" or "operator"] and [insert: name and address of third-party claimant], hereby certify that the claim of bodily injury [and/or] property damage caused by an accidental release arising from operating ["owner's" or "operator's"] underground storage tank should be paid in the amount of $[______].
[Signatures]
Owner or Operator
Attorney for Owner or Operator
(Notary)
Date
[Signatures]
Claimant(s)
Attorney(s) for Claimant(s)
(Notary)
Date
2. A valid final court order establishing a judgment against the Owner or Operator for bodily injury or property damage caused by an accidental release from a UST system covered by financial assurance under 310 CMR 80.51 through 80.63 and the Department determines that the Owner or Operator has not satisfied the judgment.(3) If the Department determines that the amount of corrective action costs and third-party liability claims eligible for payment under 310 CMR 80.60(2) may exceed the balance of the standby trust fund and the obligation of the provider of financial assurance, the first priority for payment shall be corrective action costs necessary to protect human health and the environment. The Department shall pay third-party liability claims in the order in which the Department receives certifications under 310 CMR 80.60(2)(b)1., and valid court orders under 310 CMR 80.60(2)(b)2.(4) If the guarantor is the state, the local government guarantee without standby trust, shall make payments as directed by the Department under the circumstances described in 310 CMR 80.60(1) through (3).Adopted by Mass Register Issue S1277, eff. 1/2/2015.Amended by Mass Register Issue 1453, eff. 10/1/2021.