Section 30.908 - Liability Requirements(1)Coverage for sudden accidental occurrences. An owner or operator of a hazardous waste treatment, storage, or disposal facility, or a group of such facilities in Massachusetts, shall demonstrate assurance of financial responsibility for bodily injury and property damage to third parties caused by each sudden accidental occurrence arising from operation of the facility(ies). The owner or operator of each facility shall have and continuously maintain such coverage using either the options specified in 310 CMR 30.908(1)(a) through (d) or the options specified in 310 CMR 30.910. The options specified in 310 CMR 30.908(1)(a) through (d) may be used by the owner or operator of a facility, or a group of such facilities in Massachusetts, provided that the use of such options shall be subject to the provisions of 310 CMR 30.908(5), (6), and (7). The options specified in 310 CMR 30.910 may be used by the owner or operator of each facility, provided that the use of such options shall be subject to the provisions of 310 CMR 30.910. If the owner or operator of a facility, or a group of such facilities in Massachusetts, uses the options specified in 310 CMR 30.908(1)(a) through (d), said owner or operator, subject to the provisions of 310 CMR 30.908(3), (4), and (5), shall have and continuously maintain coverage for sudden accidental occurrences in the amount of at least $3-million per each sudden accidental occurrence with an annual aggregate of at least $6-million, exclusive of legal defense costs. If the owner or operator of a facility uses the options specified in 310 CMR 30.910, said owner or operator shall have and continuously maintain coverage for sudden accidental occurrences in the amount set forth in 310 CMR 30.910. Unless such assurance of financial responsibility is demonstrated entirely by liability insurance in compliance with 310 CMR 30.908(1)(a), the owner or operator shall also obtain and maintain in effect a contract with a Claims Administrator in compliance with 310 CMR 30.908(1)(e). As used in 310 CMR 30.908(1), the term "Claims Administrator" shall mean a person who shall be responsible for the processing and administration of all requests to make payments from a trust fund, standby trust fund, surety bond, or letter of credit pursuant to 310 CMR 30.908(1). The owner or operator of each facility shall give notice to both the Department and the Claims Administrator of every claim for bodily injury and/or property damage caused by a sudden accidental occurrence or occurrences arising from the operation of the facility(ies). The owner or operator of each facility shall give such notice to both the Department and the Claims Administrator as soon as possible and in any event no later than 30 days after learning of such claim. The owner or operator of each facility shall give notice to both the Department and the Claims Administrator of every judgment against the owner or operator for bodily injury and/or property damage caused by a sudden accidental occurrence or occurrences arising from the operation of the facility. The owner or operator of each facility shall give such notice to both the Department and the Claims Administrator as soon as possible and in any event no later than 30 days after learning of said judgment. The owner or operator of each facility shall submit to the Department a copy of every judgment against the owner or operator for bodily injury and/or property damage caused by a sudden accidental occurrence or occurrences arising from the operation of the facility. The owner or operator of each facility shall submit a copy of such judgment to the Department as soon as possible and in any event no later than 30 days after receiving a copy thereof.(a) An owner or operator may demonstrate the required coverage by having liability insurance, as specified in 310 CMR 30.901(2) or (6), which conforms to 310 CMR 30.908(1)(a). 1. Each liability insurance policy shall include a Hazardous Waste Facility Liability Endorsement (the "endorsement") and may be evidenced by a Certificate of Liability Insurance. The wording of the endorsement shall be identical to the wording specified in 310 CMR 30.909(6). The wording of the certificate of insurance shall be identical to the wording specified in 310 CMR 30.909(7). The owner or operator shall submit a signed duplicate original of the endorsement or the certificate of liability insurance to the Department. If requested by the Department, the owner or operator shall provide a signed duplicate original of the liability insurance policy. An owner or operator of a facility shall submit the signed duplicate original of the Hazardous Waste Facility Liability Endorsement or the Certificate of Liability Insurance to the Department within the applicable period prescribed in 310 CMR 30.901(2) or (6).2. At a minimum, the insurer shall be licensed to transact the business of insurance in Massachusetts, or authorized to provide insurance as an excess or surplus lines insurer in Massachusetts, or a risk retention group lawfully providing insurance to its members in Massachusetts.(b) An owner or operator may demonstrate the required coverage by establishing a sudden accidental occurrence liability trust fund, as specified in 310 CMR 30.901(2) or (6), which conforms to 310 CMR 30.908(1)(b), and by sending an originally signed duplicate of the trust agreement to the Department within the applicable time period prescribed in 310 CMR 30.901(2) or (6).1. 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 Banking, or the trustee shall be a national bank.2. The wording of the trust agreement shall be identical to the wording specified in 310 CMR 30.909(8)(a), and the trust agreement shall be accompanied by a formal certification of acknowledgement identical to the wording specified in 310 CMR 30.909(8)(b).3. On the date of the initial establishment of the sudden accidental occurrence liability trust fund, the value of the fund shall be at least $6,000,000, or such other amount as required by the Department pursuant to 310 CMR 30.908(4) or (5).4. If an owner or operator substitutes other financial assurance as specified in 310 CMR 30.908(1) for all or part of the sudden accidental occurrence liability trust fund, he may submit a written request to the Department for release of the amount in excess of the amount to be covered by the sudden accidental occurrence liability trust fund.5. Any person who obtains final judgment against the owner or operator for bodily injury and/or property damage caused by a sudden accidental occurrence or occurrences arising from the operation of the facility may request payment from the sudden accidental occurrence liability trust fund in satisfaction of the judgment by submitting to the Claims Administrator a certified copy of the judgment and a statement, signed subject to 310 CMR 30.006 and 30.009, that the judgment was either (1) rendered by the highest court in the jurisdiction where the action was brought and the owner or operator exhausted all rights of appeal, or (2) rendered by the highest court which rendered a judgment and no appeal was made by the owner or operator to a higher court within the time allowed by applicable statute or rule, or (3) agreed to by the owner or operator.6. After receiving the material described in 310 CMR 30.908(1)(b)5., the Claims Administrator shall determine whether the judgment was either (1) rendered by the highest court in the jurisdiction where the action was brought and the owner or operator exhausted all rights of appeal, or (2) rendered by the highest court which rendered a judgment and no appeal was made by the owner or operator to a higher court within the time allowed by applicable statute or rule, or (3) agreed to by the owner or operator. If so, the Claims Administrator shall instruct the trustee to pay to the person who obtained the judgment such amounts, not to exceed the amount of the judgment or the amount of the limits set forth in 310 CMR 30.908(1), whichever amount is less, as the Claims Administrator may specify in writing.7. No trust shall be terminated without prior written consent of the Department. The Department may agree to termination of the trust when the Department is persuaded that the owner or operator has substituted alternate financial assurance as specified in 310 CMR 30.908(1), or when the Department certifies closure of the facility pursuant to 310 CMR 30.099(6) or 310 CMR 30.587(3). (c) An owner or operator may demonstrate the required coverage by obtaining a surety bond which conforms to 310 CMR 30.908(1)(c) and by submitting the surety bond to the Department within the applicable time period prescribed in 310 CMR 30.901(2) or (6). 1. The surety company(ies) issuing the bond shall, at a minimum, be among those lawfully selling surety bonds in Massachusetts.2. The wording of the surety bond shall be identical to the wording specified in 310 CMR 30.909(9).3. An owner or operator who uses a surety bond to satisfy the requirements of 310 CMR 30.908 shall also establish a standby trust fund. Under the terms of the surety bond, all payments made thereunder shall, in accordance with instructions from the Department, either be paid by the surety directly to a person described in 310 CMR 30.908(1)(c)5. or deposited by the surety directly into the standby trust fund. This standby trust fund shall meet the requirements in 310 CMR 30.908(1)(b), except that: a. An originally signed duplicate of the trust agreement shall be submitted to the Department with the surety bond; andb. Until the standby trust fund is funded pursuant to the requirements of 310 CMR 30.908, the following are not required:(i) payment into the trust fund as specified in 310 CMR 30.908(1)(b);(ii) annual valuations as required by the trust agreement (see 310 CMR 30.909(8)(a) 10.); and(iii) notices of nonpayment as required by the trust agreement (see 310 CMR 30.909(8)(a) 15.).4. Any person who obtains final judgment against the owner or operator for bodily injury and/or property damage caused by a sudden accidental occurrence or occurrences arising from the operation of the facility may request payment from the surety bond in satisfaction of the judgment by submitting to the Claims Administrator a certified copy of the judgment and a statement, signed subject to 310 CMR 30.006 and 310 CMR 30.009, that the judgment was either: a. rendered by the highest court in the jurisdiction where the action was brought and the owner or operator exhausted all rights of appeal;b. rendered by the highest court which rendered a judgment and no appeal was made by the owner or operator to a higher court within the time allowed by applicable statute or rule; orc. agreed to by the owner or operator.5. After receiving the material described in 310 CMR 30.908(1)(c)4., the Claims Administrator shall determine whether the judgment was either: a. rendered by the highest court in the jurisdiction where the action was brought and the owner or operator exhausted all rights of appeal;b. rendered by the highest court which rendered a judgment and no appeal was made by the owner or operator to a higher court within the time allowed by applicable statute or rule; orc. agreed to by the owner or operator. If so, the Claims Administrator shall instruct the surety company(ies) issuing the bond to pay either to the person making the claim or into the standby trust fund, or the Claims Administrator shall instruct the trustee of the standby trust fund to pay to the person who obtained the judgment, such amounts, not to exceed the amount of the judgment or the amount of the limits set forth in 310 CMR 30.908(1), whichever amount is less, as the Claims Administrator may specify in writing.6. The bond shall guarantee that the owner or operator shall: a. Fund the standby trust fund in an amount equal to either the sum of the judgment described in 310 CMR 30.908(1)(c)5. and the costs of administering said fund, or the amount of the penal sum, whichever is less, within 15 days after the Department or a court of competent jurisdiction issues an order to that effect; orb. Provide alternate financial assurance as specified in 310 CMR 30.908, and obtain the Department's written approval of the assurance provided, within 90 days after receipt by both the owner or operator and by the Department of a notice of cancellation of the surety bond from the surety.7. Under the terms of the bond, the surety shall become liable on the bond obligation when the owner or operator does not perform as guaranteed by the bond (see 310 CMR 30.909(9)).8. The penal sum of the bond shall be at least $6,000,000, or such other amount as required by the Department pursuant to 310 CMR 30.908(4) or (5).9. Under the terms of the bond, the surety may cancel the bond by sending written notice of cancellation by certified mail to the owner or operator, to the Claims Administrator, and to the Department. Cancellation may not take effect, however, until at least 120 days after the date of receipt of the notice of cancellation by the owner or operator, by the Claims Administrator, and by the Department, as shown by the latest return receipt.10. No bond shall be cancelled without prior written consent of the Department. The Department may agree to cancellation of the bond when the Department is persuaded that the owner or operator has substituted alternate financial assurance as specified in 310 CMR 30.908(1), or when the Department certifies closure of the facility pursuant to 310 CMR 30.099(6) or 310 CMR 30.587(3).(d) An owner or operator may demonstrate the required coverage by obtaining an irrevocable letter of credit which conforms to 310 CMR 30.908(1)(d) and by submitting the letter to the Department within the applicable time period prescribed in 310 CMR 30.901(2) or (6). 1. The institution issuing the letter of credit shall be an entity which has the authority to issue letters of credit and whose letter of credit operations are regulated and examined by the Massachusetts Commissioner of Banking, or the institution shall be a national bank.2. The wording of the letter of credit shall be identical to the wording specified in 310 CMR 30.909(10).3. An owner or operator who uses a letter of credit to satisfy the requirements of 310 CMR 30.908(1) shall also establish a standby trust fund. Under the terms of the letter of credit, all payments made thereunder shall, in accordance with instructions from the Claims Administrator or the Department, either be paid by the issuing institution directly to a person described in 310 CMR 30.908(1)(d)8. or deposited by the issuing institution directly into the standby trust fund. This standby trust fund shall meet the requirements in 310 CMR 30.908(1)(b), except that:a. An originally signed duplicate of the trust agreement shall be submitted to the Department with the letter of credit; andb. Until the standby trust fund is funded pursuant to the requirements of 310 CMR 30.908, the following are not required:(i) payment into the trust fund as specified in 310 CMR 30.908(1)(b);(ii) annual valuations as required by the trust agreement (see 310 CMR 30.909(8)(a) 10.); and(iii) notices of nonpayment as required by the trust agreement (see 310 CMR 30.909(8)(a) 15.).4. The letter of credit shall be accompanied by a letter from the owner or operator which shall state: a. The letter of credit number;b. The name of the issuing institution;c. The date of issuance of the letter of credit;d. The EPA identification number(s) of the facility(ies);e. The name(s) and address(es) of the facility(ies); andf. The amount of funds assured by the letter of credit.5. The letter of credit shall be irrevocable and shall be issued for a period of at least one year. The letter of credit shall provide that the expiration date will be automatically extended for a period of at least one year unless, no later than 120 days before the current expiration date pursuant to the terms of the letter of credit, the issuing institution notifies the owner or operator, the Claims Administrator, and the Department by certified mail of a decision not to extend the expiration date. Under the terms of the letter of credit, the 120 days shall not begin before the date when the owner or operator, the Claims Administrator, and the Department have received the notice, as shown by the latest return receipt.6. The letter of credit shall be issued in an amount at least $6,000,000, or such other amount as required by the Department pursuant to 310 CMR 30.908(4) or (5).7. If an owner or operator substitutes other financial assurance as specified in 310 CMR 30.908(1) for all or part of the amount of the letter of credit, he may submit a written request to the Department for release of the amount in excess of the amount to be covered by the letter of credit.8. Any person who obtains final judgment against the owner or operator for bodily injury and/or property damage caused by a nonsudden accidental occurrence or occurrences arising from the operation of the facility may request payment from the letter of credit in satisfaction of the judgment by submitting to the Claims Administrator a certified copy of the judgment and a statement, signed subject to 310 CMR 30.006 and 30.009, that the judgment was either (1) rendered by the highest court in the jurisdiction where the action was brought and the owner or operator exhausted all rights of appeal, or (2) rendered by the highest court which rendered a judgment and no appeal was made by the owner or operator to a higher court within the time allowed by applicable statute or rule, or (3) agreed to by the owner or operator.9. After receiving the material described in 310 CMR 30.908(2)(d)8., the Claims Administrator shall determine whether the judgment was either (1) rendered by the highest court in the jurisdiction where the action was brought and the owner or operator exhausted all rights of appeal, or (2) rendered by the highest court which rendered a judgment and no appeal was made by the owner or operator to a higher court within the time allowed by applicable statute or rule, or (3) agreed to by the owner or operator. If so, the Claims Administrator shall instruct the institution issuing the letter of credit to pay either to the person making the claim or into the standby trust fund, or the Claims Administrator shall instruct the trustee of the standby trust fund to pay to the person who obtained the judgment, such amounts, not to exceed the amount of the judgment or the amount of the limits set forth in 310 CMR 30.908(2), whichever amount is less, as the Claims Administrator may specify in writing.10. If the owner or operator does not establish alternate financial assurance as required by 310 CMR 30.908(2) and does not obtain written approval from the Department of any such alternate financial assurance within 90 days of receipt by the owner or operator, by the Claims Administrator, and by the Department of a notice that the issuing institution will not extend the letter of credit beyond the current expiration date, the Department shall draw on the letter of credit. The Department may delay drawing on the letter of credit if the issuing institution grants an extension of the term of the letter of credit. During the last 30 days of any such extension, the Department shall draw on the letter of credit if the owner or operator has failed to provide alternate financial assurance as specified in 310 CMR 30.908 or has failed to obtain written approval by the Department of such assurance.11. No letter of credit shall be terminated without prior written consent of the Department. The Department may return the letter of credit to the issuing institution for termination when the Department is persuaded that the owner or operator has substituted alternate financial assurance as specified in 310 CMR 30.908(2), or when the Department certifies closure of the facility pursuant to 310 CMR 30.099(6) or 30.586(2).(e) Each contract between a Claims Administrator and an owner or operator shall conform to 310 CMR 30.908(2)(e). 1. Each contract between a Claims Administrator and an owner or operator shall assure that each party to the contract is obligated by the contract to comply with all the requirements applicable to each party respectively, as set forth in 310 CMR 30.908(2).2. Prior to executing any contract with a Claims Administrator, the owner or operator shall furnish a copy of the contract to the Department. No contract between a Claims Administrator and an owner or operator shall be signed by either of them without the prior written approval of the Department. The Department may withhold such approval if the Department is not persuaded that (1) the Claims Administrator is a person who can and will properly carry out the responsibilities a Claims Administrator has pursuant to 310 CMR 30.000, or (2) the terms and wording of the contract between the Claims Administrator and the owner or operator are sufficient to protect the Department's interests. The Department shall not unreasonably withhold or delay such approval.3. The Department shall not be a party to the contract between the Claims Administrator and the owner or operator.4. Cancellation of any contract between a Claims Administrator and an owner or operator shall be effective only upon written notice and only after the expiration of at least 30 days after the date of receipt by the Department of such written notice, sent to the Department by certified mail.5. Except as provided in Section 9 of the trust agreement, the wording of which is specified in 310 CMR 30.909(8)(a), the Claims Administrator shall not receive, and shall not be eligible to receive, directly or indirectly, any money in any letter of credit or standby trust fund established pursuant to 310 CMR 30.900 and for each he is Claims Administrator.6. Nothing in 310 CMR 30.900 shall be construed to preclude the Trustee of any trust fund from also being the Contract Administrator for that trust fund.7. The Department shall have the right to direct the Claims Administrator to refuse to give instructions to pay any claim, and the Department and the Claims Administrator shall each have the right to obtain reimbursement of any claim already paid in whole or in part, if, in the opinion of the Department, the claim is fraudulent, inflated, or otherwise unlawful or unjustified.(2)Coverage for nonsudden accidental occurrences. An owner or operator of a hazardous waste treatment, storage, or disposal facility which is either described in 310 CMR 30.901(1)(b) or so required by the Department pursuant to 310 CMR 30.908(4), or a group of such facilities in Massachusetts, shall demonstrate assurance of financial responsibility for bodily injury and property damage to third parties caused by each nonsudden accidental occurrence arising from operation of the facility(ies). The owner or operator of each facility shall have and continuously maintain such coverage using either the options specified in 310 CMR 30.908(2)(a) through (d) or the options specified in 310 CMR 30.910. The options specified in 310 CMR 30.908(2)(a) through (d) may be used by the owner or operator of a facility, or a group of such facilities in Massachusetts, provided that the use of such options shall be subject to the provisions of 310 CMR 30.908(5), (6), and (7). The options specified in 310 CMR 30.910 may be used by the owner or operator of each facility, provided that the use of such options shall be subject to the provisions of 310 CMR 30.910. If the owner or operator of a facility, or a group of such facilities in Massachusetts, uses the options specified in 310 CMR 30.908(2)(a) through (d), said owner or operator, subject to the provisions of 310 CMR 30.908(3), (4), and (5), shall have and continuously maintain coverage for nonsudden accidental occurrences in the amount of at least $5-million per each nonsudden accidental occurrence with an annual aggregate of at least $10-million, exclusive of legal defense costs. If the owner or operator of a facility uses the options specified in 310 CMR 30.910, said owner or operator shall have and continuously maintain coverage for nonsudden accidental occurrences in the amount set forth in 310 CMR 30.910. Unless such assurance of financial responsibility is demonstrated entirely by liability insurance in compliance with 310 CMR 30.908(2)(a), the owner or operator shall also obtain and maintain in effect a contract with a Claims Administrator in compliance with 310 CMR 30.908(2)(e). As used in 310 CMR 30.908(2), the term "Claims Administrator" shall mean a person who shall be responsible for the processing and administration of all requests to make payments from a trust fund, standby trust fund, surety bond, or letter of credit pursuant to 310 CMR 30.908(2). The owner or operator of each facility shall give notice to both the Department and the Claims Administrator of every claim for bodily injury and/or property damage caused by a nonsudden accidental occurrence or occurrences arising from the operation of the facility(ies). The owner or operator of each facility shall give such notice to both the Department and the Claims Administrator as soon as possible and in any event no later than 30 days after learning of such claim. The owner or operator of each facility shall give notice to both the Department and the Claims Administrator of every judgment against the owner or operator for bodily injury and/or property damage caused by a nonsudden accidental occurrence or occurrences arising from the operation of the facility. The owner or operator of each facility shall give such notice to both the Department and the Claims Administrator as soon as possible and in any event no later than 30 days after learning of said judgment. The owner or operator of each facility shall submit to the Department a copy of every judgment against the owner or operator for bodily injury and/or property damage caused by a nonsudden accidental occurrence or occurrences arising from the operation of the facility. The owner or operator of each facility shall submit a copy of such judgment to the Department as soon as possible and in any event no later than 30 days after receiving a copy thereof. (a) An owner or operator may demonstrate the required coverage by having liability insurance, as specified in 310 CMR 30.901(2) or (6), which conforms to 310 CMR 30.908(2)(a). 1. Each liability insurance policy shall include a Hazardous Waste Facility Liability Endorsement (the "endorsement") and may be evidenced by a Certificate of Liability Insurance. The wording of the endorsement shall be identical to the wording specified in 310 CMR 30.909(6). The wording of the certificate of insurance shall be identical to the wording specified in 310 CMR 30.909(7). The owner or operator shall submit a signed duplicate original of the endorsement or the certificate of liability insurance to the Department. If requested by the Department, the owner or operator shall provide a signed duplicate original of the liability insurance policy. An owner or operator of a facility shall submit the signed duplicate original of the Hazardous Waste Facility Liability Endorsement or the Certificate of Liability Insurance to the Department within the applicable period prescribed in 310 CMR 30.901(2) or (6).2. At a minimum, the insurer shall be licensed to transact the business of insurance in Massachusetts, or authorized to provide insurance as an excess or surplus lines insurer in Massachusetts, or a risk retention group lawfully providing insurance to its members in Massachusetts.(b) An owner or operator may demonstrate the required coverage by establishing a nonsudden accidental occurrence liability trust fund, as specified in 310 CMR 30.901(2) or (6), which conforms to 310 CMR 30.908(2)(b), and by sending an originally signed duplicate of the trust agreement to the Department within the applicable time period prescribed in 310 CMR 30.901(2) or (6). 1. 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 Banking, or the trustee shall be a national bank.2. The wording of the trust agreement shall be identical to the wording specified in 310 CMR 30.909(8)(a), and the trust agreement shall be accompanied by a formal certification of acknowledgement identical to the wording specified in 310 CMR 30.909(8)(b).3. On the date of the initial establishment of the nonsudden accidental occurrence liability trust fund, the value of the fund shall be at least $10,000,000.00, or such other amount as required by the Department pursuant to 310 CMR 30.908(4) or (5).4. If an owner or operator substitutes other financial assurance as specified in 310 CMR 30.908(2) for all or part of the nonsudden accidental occurrence liability trust fund, he may submit a written request to the Department for release of the amount in excess of the amount to be covered by the nonsudden accidental occurrence liability trust fund.5. Any person who obtains final judgment against the owner or operator for bodily injury and/or property damage caused by a nonsudden accidental occurrence or occurrences arising from the operation of the facility may request payment from the nonsudden accidental occurrence liability trust fund in satisfaction of the judgment by submitting to the Claims Administrator a certified copy of the judgment and a statement, signed subject to 310 CMR 30.006 and 30.009, that the judgment was either (1) rendered by the highest court in the jurisdiction where the action was brought and the owner or operator exhausted all rights of appeal, or (2) rendered by the highest court which rendered a judgment and no appeal was made by the owner or operator to a higher court within the time allowed by applicable statute or rule, or (3) agreed to by the owner or operator.6. After receiving the material described in 310 CMR 30.908(2)(b)5., the Claims Administrator shall determine whether the judgment was either (1) rendered by the highest court in the jurisdiction where the action was brought and the owner or operator exhausted all rights of appeal, or (2) rendered by the highest court which rendered a judgment and no appeal was made by the owner or operator to a higher court within the time allowed by applicable statute or rule, or (3) agreed to by the owner or operator. If so, the Claims Administrator shall instruct the trustee to pay to the person who obtained the judgment such amounts, not to exceed the amount of the judgment or the amount of the limits set forth in 310 CMR 30.908(2), whichever amount is less, as the Claims Administrator may specify in writing.7. No trust shall be terminated without prior written consent of the Department. The Department may agree to termination of the trust when the Department is persuaded that the owner or operator has substituted alternate financial assurance as specified in 310 CMR 30.908(2), or when the Department certifies closure of the facility pursuant to 310 CMR 30.099(6) or 30.586(2).(c) An owner or operator may demonstrate the required coverage by obtaining a surety bond which conforms to 310 CMR 30.908(2)(c) and by submitting the surety bond to the Department within the applicable time period prescribed in 310 CMR 30.901(2) or (6). 1. The surety company(ies) issuing the bond shall, at a minimum, be among those lawfully selling surety bonds in Massachusetts.2. The wording of the surety bond shall be identical to the wording specified in 310 CMR 30.909(9).3. An owner or operator who uses a surety bond to satisfy the requirements of 310 CMR 30.908 shall also establish a standby trust fund. Under the terms of the surety bond, all payments made thereunder shall, in accordance with instructions from the Department, either be paid by the surety directly to a person described in 310 CMR 30.908(2)(c)5. or deposited by the surety directly into the standby trust fund. This standby trust fund shall meet the requirements in 310 CMR 30.908(2)(b), except that: a. An originally signed duplicate of the trust agreement shall be submitted to the Department with the surety bond; andb. Until the standby trust fund is funded pursuant to the requirements of 310 CMR 30.908, the following are not required:(i) payment into the trust fund as specified in 310 CMR 30.908(2)(b);(ii) annual valuations as required by the trust agreement (See310 CMR 30.909(8)(a)10.); and(iii) notices of nonpayment as required by the trust agreement (See310 CMR 30.909(8)(a)15.).4. Any person who obtains final judgment against the owner or operator for bodily injury and/or property damage caused by a nonsudden accidental occurrence or occurrences arising from the operation of the facility may request payment from the surety bond in satisfaction of the judgment by submitting to the Claims Administrator a certified copy of the judgment and a statement, signed subject to 310 CMR 30.006 and 30.009, that the judgment was either (1) rendered by the highest court in the jurisdiction where the action was brought and the owner or operator exhausted all rights of appeal, or (2) rendered by the highest court which rendered a judgment and no appeal was made by the owner or operator to a higher court within the time allowed by applicable statute or rule, or (3) agreed to by the owner or operator.5. After receiving the material described in 310 CMR 30.908(2)(c)4., the Claims Administrator shall determine whether the judgment was either (1) rendered by the highest court in the jurisdiction where the action was brought and the owner or operator exhausted all rights of appeal, or (2) rendered by the highest court which rendered a judgment and no appeal was made by the owner or operator to a higher court within the time allowed by applicable statute or rule, or (3) agreed to by the owner or operator. If so, the Claims Administrator shall instruct the surety company(ies) issuing the bond to pay either to the person making the claim or into the standby trust fund, or the Claims Administrator shall instruct the trustee of the standby trust fund to pay to the person who obtained the judgment, such amounts, not to exceed the amount of the judgment or the amount of the limits set forth in 310 CMR 30.908(2), whichever amount is less, as the Claims Administrator may specify in writing.6. The bond shall guarantee that the owner or operator shall:a. Fund the standby trust fund in an amount equal to either the sum of the judgment described in 310 CMR 30.908(2)(c)5. and the costs of administering said fund, or the amount of the penal sum, whichever is less, within 15 days after the Department or a court of competent jurisdiction issues an order to that effect; orb. Provide alternate financial assurance as specified in 310 CMR 30.908, and obtain the Department's written approval of the assurance provided, within 90 days after receipt by both the owner or operator and by the Department of a notice of cancellation of the surety bond from the surety.7. Under the terms of the bond (See310 CMR 30.909(9) ) , the surety shall become liable on the bond obligation when the owner or operator does not perform as guaranteed by the bond (See310 CMR 30.909(9) ) .8. The penal sum of the bond shall be at least $10,000,000.00, or such other amount as required by the Department pursuant to 310 CMR 30.908(4) or (5).9. Under the terms of the bond, the surety may cancel the bond by sending written notice of cancellation by certified mail to the owner or operator, to the Claims Administrator, and to the Department. Cancellation may not take effect, however, until at least 120 days after the date of receipt of the notice of cancellation by the owner or operator, by the Claims Administrator, and by the Department, as shown by the latest return receipt.10. No bond shall be cancelled without prior written consent of the Department. The Department may agree to cancellation of the bond when the Department is persuaded that the owner or operator has substituted alternate financial assurance as specified in 310 CMR 30.908(2), or when the Department certifies closure of the facility pursuant to 310 CMR 30.099(6) or 30.586(2).(d) An owner or operator may demonstrate the required coverage by obtaining an irrevocable letter of credit which conforms to 310 CMR 30.908(2)(d) and by submitting the letter to the Department within the applicable time period prescribed in 310 CMR 30.901(2) or (6). 1. The institution issuing the letter of credit shall be an entity which has the authority to issue letters of credit and whose letter of credit operations are regulated and examined by the Massachusetts Commissioner of Banking, or the institution shall be a national bank.2. The wording of the letter of credit shall be identical to the wording specified in 310 CMR 30.909(10).3. An owner or operator who uses a letter of credit to satisfy the requirements of 310 CMR 30.908(2) shall also establish a standby trust fund. Under the terms of the letter of credit, all payments made thereunder shall, in accordance with instructions from the Claims Administrator or the Department, either be paid by the issuing institution directly to a person described in 310 CMR 30.908(2)(d)8. or deposited by the issuing institution directly into the standby trust fund. This standby trust fund shall meet the requirements in 310 CMR 30.908(2)(b), except that: a. An originally signed duplicate of the trust agreement shall be submitted to the Department with the letter of credit; andb. Until the standby trust fund is funded pursuant to the requirements of 310 CMR 30.908, the following are not required:(i) payment into the trust fund as specified in 310 CMR 30.908(2)(b);(ii) annual valuations as required by the trust agreement (See310 CMR 30.909(8)(a)10.); and(iii) notices of nonpayment as required by the trust agreement (See310 CMR 30.909(8)(a)15.).4. The letter of credit shall be accompanied by a letter from the owner or operator which shall state: a. The letter of credit number;b. The name of the issuing institution;c. The date of issuance of the letter of credit;d. The EPA identification number(s) of the facility(ies);e. The name(s) and address(es) of the facility(ies); andf. The amount of funds assured by the letter of credit.5. The letter of credit shall be irrevocable and shall be issued for a period of at least one year. The letter of credit shall provide that the expiration date will be automatically extended for a period of at least one year unless, no later than 120 days before the current expiration date pursuant to the terms of the letter of credit, the issuing institution notifies the owner or operator, the Claims Administrator, and the Department by certified mail of a decision not to extend the expiration date. Under the terms of the letter of credit, the 120 days shall not begin before the date when the owner or operator, the Claims Administrator, and the Department have received the notice, as shown by the latest return receipt.6. The letter of credit shall be issued in an amount at least $10,000,000.00, or such other amount as required by the Department pursuant to 310 CMR 30.908(4) or (5).7. If an owner or operator substitutes other financial assurance as specified in 310 CMR 30.908(2) for all or part of the amount of the letter of credit, he may submit a written request to the Department for release of the amount in excess of the amount to be covered by the letter of credit.8. Any person who obtains final judgment against the owner or operator for bodily injury and/or property damage caused by a nonsudden accidental occurrence or occurrences arising from the operation of the facility may request payment from the letter of credit in satisfaction of the judgment by submitting to the Claims Administrator a certified copy of the judgment and a statement, signed subject to 310 CMR 30.006 and 30.009, that the judgment was either (1) rendered by the highest court in the jurisdiction where the action was brought and the owner or operator exhausted all rights of appeal, or (2) rendered by the highest court which rendered a judgment and no appeal was made by the owner or operator to a higher court within the time allowed by applicable statute or rule, or (3) agreed to by the owner or operator.9. After receiving the material described in 310 CMR 30.908(2)(d)8., the Claims Administrator shall determine whether the judgment was either (1) rendered by the highest court in the jurisdiction where the action was brought and the owner or operator exhausted all rights of appeal, or (2) rendered by the highest court which rendered a judgment and no appeal was made by the owner or operator to a higher court within the time allowed by applicable statute or rule, or (3) agreed to by the owner or operator. If so, the Claims Administrator shall instruct the institution issuing the letter of credit to pay either to the person making the claim or into the standby trust fund, or the Claims Administrator shall instruct the trustee of the standby trust fund to pay to the person who obtained the judgment, such amounts, not to exceed the amount of the judgment or the amount of the limits set forth in 310 CMR 30.908(2), whichever amount is less, as the Claims Administrator may specify in writing.10. If the owner or operator does not establish alternate financial assurance as required by 310 CMR 30.908(2) and does not obtain written approval from the Department of any such alternate financial assurance within 90 days of receipt by the owner or operator, by the Claims Administrator, and by the Department of a notice that the issuing institution will not extend the letter of credit beyond the current expiration date, the Department shall draw on the letter of credit. The Department may delay drawing on the letter of credit if the issuing institution grants an extension of the term of the letter of credit. During the last 30 days of any such extension, the Department shall draw on the letter of credit if the owner or operator has failed to provide alternate financial assurance as specified in 310 CMR 30.908 or has failed to obtain written approval by the Department of such assurance.11. No letter of credit shall be terminated without prior written consent of the Department. The Department may return the letter of credit to the issuing institution for termination when the Department is persuaded that the owner or operator has substituted alternate financial assurance as specified in 310 CMR 30.908(2), or when the Department certifies closure of the facility pursuant to 310 CMR 30.099(6) or 30.586(2).(e) Each contract between a Claims Administrator and an owner or operator shall conform to 310 CMR 30.908(2)(e). 1. Each contract between a Claims Administrator and an owner or operator shall assure that each party to the contract is obligated by the contract to comply with all the requirements applicable to each party respectively, as set forth in 310 CMR 30.908(2).2. Prior to executing any contract with a Claims Administrator, the owner or operator shall furnish a copy of the contract to the Department. No contract between a Claims Administrator and an owner or operator shall be signed by either of them without the prior written approval of the Department. The Department may withhold such approval if the Department is not persuaded that (1) the Claims Administrator is a person who can and will properly carry out the responsibilities a Claims Administrator has pursuant to 310 CMR 30.000, or (2) the terms and wording of the contract between the Claims Administrator and the owner or operator are sufficient to protect the Department's interests. The Department shall not unreasonably withhold or delay such approval.3. The Department shall not be a party to the contract between the Claims Administrator and the owner or operator.4. Cancellation of any contract between a Claims Administrator and an owner or operator shall be effective only upon written notice and only after the expiration of at least 30 days after the date of receipt by the Department of such written notice, sent to the Department by certified mail.5. Except as provided in Section 9 of the trust agreement, the wording of which is specified in 310 CMR 30.909(8)(a), the Claims Administrator shall not receive, and shall not be eligible to receive, directly or indirectly, any money in any letter of credit or standby trust fund established pursuant to 310 CMR 30.900 and for each he is Claims Administrator.6. Nothing in 310 CMR 30.900 shall be construed to preclude the Trustee of any trust fund from also being the Contract Administrator for that trust fund.7. The Department shall have the right to direct the Claims Administrator to refuse to give instructions to pay any claim, and the Department and the Claims Administrator shall each have the right to obtain reimbursement of any claim already paid in whole or in part, if, in the opinion of the Department, the claim is fraudulent, inflated, or otherwise unlawful or unjustified.(3)Period of Coverage. Each owner or operator shall continuously provide all required liability coverage for each facility until the Department certifies closure of the facility pursuant to 310 CMR 30.099(6) or 30.587(3).(4)Adjustments by the Department. If the Department determines that the amount of financial assurance required by 310 CMR 30.908(1) or (2) is not high enough to reflect the degree or duration of risk associated with treatment, storage, or disposal of hazardous waste at a particular facility, the Department may require that the amount of financial assurance be increased to reflect such risk. If the Department determines that there is a significant risk to human health or the environment from non-sudden accidental occurrences resulting from the operation of a facility that is not described in 310 CMR 30.901(1)(b), the Department may require that the owner or operator of such facility comply with 310 CMR 30.908(2). An owner or operator shall furnish to the Department, within a reasonable time, any information which the Department requests to determine whether cause exists for adjusting the amount or type of financial assurance. Any adjustment of the amount or type of financial assurance for a facility which has a license shall be treated as a license modification pursuant to 310 CMR 30.800. Any adjustment of the amount or type of financial assurance for a facility having interim status pursuant to RCRA which does not have a license shall be treated as if it were a license modification pursuant to 310 CMR 30.800.(5)Use of Multiple Financial Mechanisms. An owner or operator may satisfy the requirements of 310 CMR 30.908(1) and (2) by establishing more than one financial mechanism per Massachusetts facility. These mechanisms shall be limited to liability insurance, trust funds, surety bonds guaranteeing payment, and letters of credit. These mechanisms shall be in compliance with 310 CMR 30.908(1) and (2), except that it shall be a combination of mechanisms, rather than a single mechanism, which shall provide financial assurance for the amounts required pursuant to 310 CMR 30.908. If an owner or operator uses a trust fund in combination with any other mechanism, he shall use the trust fund as a standby trust fund for those mechanisms for which the establishment of a standby trust fund is required. A single standby trust fund may be used for two or more mechanisms. The Department may use any or all of the mechanisms to provide for financial assurance as required by 310 CMR 30.908.(6)Use of a Financial Mechanism for Multiple Facilities.(a) An owner or operator may use a financial assurance mechanism specified in 310 CMR 30.908 to meet the requirements of 310 CMR 30.908 for more than one Massachusetts facility.(b) Evidence of financial assurance submitted to the Department shall include a list showing, for each facility, the EPA identification number, name, address, and amount of funds assured by the mechanism.(7)Use of a mechanism for assurance of financial responsibility for both sudden accidental occurrences and nonsudden accidental occurrences. An owner or operator may satisfy the requirements for assurance of financial responsibility for both sudden accidental occurrences and nonsudden accidental occurrences and for more than one facility by using liability insurance, a trust fund, a surety bond guaranteeing payment, or a letter of credit, or a combination thereof, which meets the specifications set forth in 310 CMR 30.908. The amount of funds available through the mechanism(s) shall be no less than the sum of funds that would be available if separate mechanism(s) were to be established and required to be maintained.(8)Payment of claims and judgments by other means. Nothing in 310 CMR 30.000 shall be construed to affect an owner's or operator's right or duty to use other financial mechanisms to satisfy or pay any claim or judgment for bodily injury and/or property damage caused by an accidental occurrence or occurrences arising from the operation of the facility.Amended by Mass Register Issue 1404, eff. 11/15/2019.