7 Del. Admin. Code § 1352-D-22.0

Current through Register Vol. 28, No. 7, January 1, 2025

Section 1352-D-22.0 - Form B - AST Guarantee

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 Department of Natural Resources and Environmental Control (Department) and to any and all third parties, and obligees, on behalf of [Owner or Operator] of [Business Name and Address]

Recitals

(1) Guarantor meets or exceeds the financial test criteria of PART D, subsection 5.1.2 or PART D, subsection 5.1.3 and agrees to comply with the requirements for Guarantors as specified in PART D, subsection 6.1.

(2) [Owner or Operator] owns or operates the following aboveground storage tanks (ASTs) covered by this guarantee:

List for each Facility: the name and address of the Facility where ASTs assured by this Guarantee are located, and indicate which ASTs are assured by this Guarantee. List each AST by the AST identification number provided in the registration form submitted pursuant to Part A of s this regulation.

AST Facility I.D. Number: ____________________ (as listed on DNREC registration certificate)

Facility Name: ______________________________________________________________

Facility Street: ______________________________________________________________

Facility City: _____________________________________ Facility Zip Code: ____________

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This guarantee satisfies PART D, Section 3.0 for assuring funding for [insert: "taking Corrective Action" and/or "compensating third parties for Bodily Injury and Property Damage"] caused by Accidental Releases; if coverage is different for different ASTs or locations, indicate the type of coverage applicable to each AST or location arising from operating the above-identified AST(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); "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)] _________________, Guarantor guarantees to the Department and to any and all third parties that:

In the event that [Owner or Operator] fails to provide alternate coverage within 60 days after receipt of a notice of cancellation of this Guarantee and the Secretary has determined or suspects that a Release has occurred at an AST covered by this Guarantee, the Guarantor, upon instructions from the Department, shall fund a standby trust fund in accordance with the provisions of PART D, Section 18.0 in an amount not to exceed the coverage limits specified above.

In the event that the Department determines that [Owner or Operator] has failed to perform Corrective Action for Release arising out of the operation of the above-identified tank(s) in accordance with PART E of this regulation, the Guarantor upon written instructions from the Department shall fund a standby trust fund in accordance with the provisions of PART D, Section 18.0 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 Accidental Releases arising from the operation of the above-identified ASTs, 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 fund in accordance with the provisions of PART D, Section 18.0 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 PART D, subsection 5.1.1 and PART D, subsection 5.1.2, or PART D, subsection 5.1.3, Guarantor shall send within 120 days of such failure, by Verifiable Service, notice to [Owner and Operator]. The Guarantee will terminate 120 days from the date of receipt of the notice by [Owner and Operator] as evidenced by Verifiable Service.

(5) Guarantor agrees to notify [Owner or Operator] by Verifiable Service of a voluntary or involuntary proceeding under Title 11 (Bankruptcy), U.S. Code, naming Guarantor as debtor, within 10 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 this regulation.

(7) Guarantor agrees to remain bound under this Guarantee for so long as [Owner or Operator] shall comply with the applicable financial responsibility requirements of this regulation for the above-identified ASTs, 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, loaned to, in the care of, custody, or control of, or occupied by [Owner or Operator] that is not the direct result of a Release from an AST;

(e) Bodily Injury 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 PART D, Section 3.0.

(9) Guarantor expressly waives notice of acceptance of this guarantee by the Department, by any or all third parties, or by [Owner or Operator].

I hereby certify that the wording of this guarantee is identical to the wording specified in PART D, Section 6.0 of the Delaware Regulations Governing Aboveground Storage Tanks 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:_____________________________________________________

7 Del. Admin. Code § 1352-D-22.0

20 DE Reg. 815 (4/1/2017)
27 DE Reg. 536 (1/1/2024) (Final)