NR 661.0143(3)(d)
(d) The letter of credit shall be accompanied by a letter from the owner or operator referring to the letter of credit by number, issuing institution, and date, and providing the following information: The EPA Identification Number, if any issued; name, and address of the facility; and the amount of funds assured for the facility by the letter of credit.
NR 661.0143(3)(e)
(e) The letter of credit shall be irrevocable and 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, at least 120 days before the current expiration date, the issuing institution notifies both the owner or operator 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 will begin on the date when both the owner or operator and the department have received the notice, as evidenced by the return receipts.
NR 661.0143(3)(f)
(f) Except as provided in sub.
(6), the letter of credit shall be issued in an amount at least equal to the current cost estimate.
NR 661.0143(3)(g)
(g) Whenever the current cost estimate increases to an amount greater than the amount of the credit, the owner or operator, within 60 days after the increase, shall either cause the amount of the credit to be increased so that it at least equals the current cost estimate and submit evidence of such increase to the department, or obtain other financial assurance as specified in this section to cover the increase. Whenever the current cost estimate decreases, the amount of the credit may be reduced to the amount of the current cost estimate following written approval by the department.
NR 661.0143(3)(h)
(h) Following a determination by the department that the hazardous secondary material do not meet the conditions of the exclusion under s.
NR 661.0004 (1) (x), the department may draw on the letter of credit.
NR 661.0143(3)(i)
(i) If the owner or operator does not establish alternate financial assurance as specified in this section and obtain written approval of such alternate assurance from the department within 90 days after receipt by both the owner or operator and the department of a notice from the issuing institution that it has decided not to extend the letter of credit beyond the current expiration date, the department will draw on the letter of credit. The department may delay the drawing if the issuing institution grants an extension of the term of the credit. During the last 30 days of any such extension the department will draw on the letter of credit if the owner or operator has failed to provide alternate financial assurance as specified in this section and obtain written approval of such assurance from the department.
NR 661.0143(3)(j)
(j) The department will return the letter of credit to the issuing institution for termination when any of the following apply:
NR 661.0143(3)(j)1.
1. An owner or operator substitutes alternate financial assurance as specified in this section.
NR 661.0143(3)(j)2.
2. The department releases the owner or operator from the requirements of this section in accordance with sub.
(9).
NR 661.0143(4)(a)
(a) An owner or operator may satisfy the requirements of this section by obtaining insurance that conforms to the requirements of this subsection and submitting a certificate of such insurance to the department. At a minimum, the insurer shall be licensed to transact the business of insurance, or eligible to provide insurance as an excess or surplus lines insurer, in one or more states.
NR 661.0143(4)(c)
(c) The insurance policy shall be issued for a face amount at least equal to the current cost estimate, except as provided in sub.
(6). The term “face amount” means the total amount the insurer is obligated to pay under the policy. Actual payments by the insurer will not change the face amount, although the insurer's future liability will be lowered by the amount of the payments.
NR 661.0143(4)(d)
(d) The insurance policy shall guarantee that funds will be available whenever needed to pay the cost of removal of all hazardous secondary material from the unit, to pay the cost of decontamination of the unit, to pay the costs of the performance of activities required under subch.
G of ch. NR 664 or subch.
G of ch. NR 665, as applicable, for the facilities covered by this policy. The policy shall also guarantee that once funds are needed, the insurer will be responsible for paying out funds, up to an amount equal to the face amount of the policy, upon the direction of the department, to such party or parties as the department specifies.
NR 661.0143(4)(e)
(e) After beginning partial or final closure under ch.
NR 664 or
665, as applicable, an owner or operator or any other authorized person may request reimbursements for closure expenditures by submitting itemized bills to the department. The owner or operator may request reimbursements only if the remaining value of the policy is sufficient to cover the maximum costs of closing the facility over its remaining operating life. Within 60 days after receiving bills for closure activities, the department will instruct the insurer to make reimbursements in such amounts as the department specifies in writing if the department determines that the expenditures are in accordance with the approved plan or otherwise justified. If the department has reason to believe that the maximum cost over the remaining life of the facility will be significantly greater than the face amount of the policy, the department may withhold reimbursement of such amounts as the department deems prudent until the department determines, in accordance with sub.
(8), that the owner or operator is no longer required to maintain financial assurance for the particular facility. If the department does not instruct the insurer to make such reimbursements, the department will provide to the owner or operator a detailed written statement of reasons.
NR 661.0143(4)(f)
(f) The owner or operator shall maintain the policy in full force and effect until the department consents to termination of the policy by the owner or operator as specified in par.
(j). Failure to pay the premium, without substitution of alternate financial assurance as specified in this section, will constitute a significant violation of this section warranting such remedy as the department deems necessary. Such violation will be deemed to begin upon receipt by the department of a notice of future cancellation, termination, or failure to renew due to nonpayment of the premium, rather than upon the date of expiration.
NR 661.0143(4)(g)
(g) Each policy shall contain a provision allowing assignment of the policy to a successor owner or operator. Such assignment may be conditional upon consent of the insurer, provided such consent is not unreasonably refused.
NR 661.0143(4)(h)
(h) The policy shall provide that the insurer may not cancel, terminate, or fail to renew the policy except for failure to pay the premium. The automatic renewal of the policy shall, at a minimum, provide the insured with the option of renewal at the face amount of the expiring policy. If the owner or operator fails to pay the premium, the insurer may elect to cancel, terminate, or fail to renew the policy by sending notice by certified mail to the owner or operator and the department. Cancellation, termination, or failure to renew may not occur, however, during the 120 days beginning with the date of receipt of the notice by both the department and the owner or operator, as evidenced by the return receipts. Cancellation, termination, or failure to renew may not occur and the policy will remain in full force and effect in the event that
, on or before the date of expiration
, any of the following occurs:
NR 661.0143(4)(h)2.
2. Conditional exclusion or interim status is lost, terminated, or revoked.
NR 661.0143(4)(h)3.
3. Closure is ordered by the department or a U.S. district court or other court of competent jurisdiction.
NR 661.0143(4)(h)4.
4. The owner or operator is named as debtor in a voluntary or involuntary bankruptcy proceeding under Title 11, U.S. Code.
NR 661.0143(4)(i)
(i) Whenever the current cost estimate increases to an amount greater than the face amount of the policy, the owner or operator, within 60 days after the increase, shall either cause the face amount to be increased to an amount at least equal to the current cost estimate and submit evidence of such increase to the department, or obtain other financial assurance as specified in this section to cover the increase. Whenever the current cost estimate decreases, the face amount may be reduced to the amount of the current cost estimate following written approval by the department.
NR 661.0143(4)(j)
(j) The department will give written consent to the owner or operator that the owner or operator may terminate the insurance policy when any of the following apply:
NR 661.0143(4)(j)1.
1. The owner or operator substitutes alternate financial assurance as specified in this section.
NR 661.0143(4)(j)2.
2. The department releases the owner or operator from the requirements of this section in accordance with sub.
(9).
NR 661.0143(5)(a)(a) An owner or operator may satisfy the requirements of this section by demonstrating that the owner or operator passes a financial test as specified in this subsection. To pass this test the owner or operator shall meet the criteria of either subd.
1. or
2.:
NR 661.0143(5)(a)1.a.
a. Two of the following 3 ratios: A ratio of total liabilities to net worth less than 2.0; a ratio of the sum of net income plus depreciation, depletion, and amortization to total liabilities greater than 0.1; and a ratio of current assets to current liabilities greater than 1.5.
NR 661.0143(5)(a)1.b.
b. Net working capital and tangible net worth each at least 6 times the sum of the current cost estimates and the current plugging and abandonment cost estimates.
NR 661.0143(5)(a)1.d.
d. Assets located in the United States amounting to at least 90 percent of total assets or at least 6 times the sum of the current cost estimates and the current plugging and abandonment cost estimates.
NR 661.0143(5)(a)2.a.
a. A current rating for the owner's or operator's most recent bond issuance of AAA, AA, A, or BBB as issued by Standard and Poor's or Aaa, Aa, A, or Baa as issued by Moody's.
NR 661.0143(5)(a)2.b.
b. Tangible net worth at least 6 times the sum of the current cost estimates and the current plugging and abandonment cost estimates.
NR 661.0143(5)(a)2.d.
d. Assets located in the United States amounting to at least 90 percent of total assets or at least 6 times the sum of the current cost estimates and the current plugging and abandonment cost estimates.
NR 661.0143(5)(b)
(b) The phrase “current cost estimates” as used in par.
(a) refers to the cost estimates required to be shown in paragraphs 1 to 4 of the letter from the owner's or operator's chief financial officer as required in s.
NR 661.0151 (5). The phrase “current plugging and abandonment cost estimates” as used in par.
(a) refers to the cost estimates required to be shown in paragraphs 1 to 4 of the letter from the owner's or operator's chief financial officer as required in
40 CFR 144.70 (f).
NR 661.0143(5)(c)
(c) To demonstrate that the owner or operator meets this test, the owner or operator shall submit all of the following to the department:
NR 661.0143(5)(c)2.
2. A copy of the independent certified public accountant's report on examination of the owner's or operator's financial statements for the latest completed fiscal year.
NR 661.0143(5)(c)3.
3. If the chief financial officer's letter providing evidence of financial assurance includes financial data showing that the owner or operator satisfies par.
(a) 1. that are different from the data in the audited financial statements referred to in subd
. 2. or any other audited financial statement or data filed with the U.S. Securities and Exchange Commission, SEC, then a special report from the owner's or operator's independent certified public accountant to the owner or operator is required. The special report shall be based upon an agreed upon procedures engagement in accordance with professional auditing standards and shall describe the procedures performed in comparing the data in the chief financial officer's letter derived from the independently audited, year-end financial statements for the latest fiscal year with the amounts in such financial statements, the findings of the comparison, and the reasons for any differences.
NR 661.0143(5)(d)
(d) The owner or operator may obtain an extension of the time allowed for submission of the documents specified in par.
(c) if the fiscal year of the owner or operator ends during the 90 days prior to September 1, 2020, and if the year-end financial statements for that fiscal year will be audited by an independent certified public accountant. The extension will end no later than 90 days after the end of the owner's or operator's fiscal year. To obtain the extension, the owner's or operator's chief financial officer shall send, by September 1, 2020, a letter to the department of each region in which the owner's or operator's facilities to be covered by the financial test are located. This letter from the chief financial officer shall contain all of the following:
NR 661.0143(5)(d)2.
2. Certify that the chief financial officer has grounds to believe that the owner or operator meets the criteria of the financial test.
NR 661.0143(5)(d)3.
3. Specify for each facility to be covered by the test the EPA Identification Number, if any issued, name, address, and current cost estimates to be covered by the test.
NR 661.0143(5)(d)4.
4. Specify the date ending the owner's or operator's last complete fiscal year before September 1, 2020
.
NR 661.0143(5)(d)5.
5. Specify the date, no later than 90 days after the end of such fiscal year, when the chief financial officer will submit the documents specified in par.
(c).
NR 661.0143(5)(d)6.
6. Certify that the year-end financial statements of the owner or operator for such fiscal year will be audited by an independent certified public accountant.
NR 661.0143(5)(e)
(e) After the initial submission of items specified in par.
(c), the owner or operator shall send updated information to the department within 90 days after the close of each succeeding fiscal year. This information shall consist of all 3 items specified in par.
(c).
NR 661.0143(5)(f)
(f) If the owner or operator no longer meets the requirements specified in par.
(a), the owner or operator shall send notice to the department of intent to establish alternate financial assurance as specified in this section. The notice shall be sent by certified mail within 90 days after the end of the fiscal year for which the year-end financial data show that the owner or operator no longer meets the requirements. The owner or operator shall provide the alternate financial assurance within 120 days after the end of such fiscal year.
NR 661.0143(5)(g)
(g) The department may, based on a reasonable belief that the owner or operator may no longer meet the requirements specified in par.
(a), require reports of financial condition at any time from the owner or operator in addition to those specified in par.
(c). If the department finds, on the basis of such reports or other information, that the owner or operator no longer meets the requirements specified in par.
(a), the owner or operator shall provide alternate financial assurance as specified in this section within 30 days after notification of such a finding.
NR 661.0143(5)(h)
(h) The department may disallow use of this test on the basis of qualifications in the opinion expressed by the independent certified public accountant in the independent certified public accountant's report on examination of the owner's or operator's financial statements described in par.
(c) 2. An adverse opinion or a disclaimer of opinion will be cause for disallowance. The department will evaluate other qualifications on an individual basis. The owner or operator shall provide alternate financial assurance as specified in this section within 30 days after notification of the disallowance.
NR 661.0143(5)(i)
(i) The owner or operator is no longer required to submit the items specified in par.
(c) when any one of the following occurs:
NR 661.0143(5)(i)1.
1. An owner or operator substitutes alternate financial assurance as specified in this section.
NR 661.0143(5)(i)2.
2. The department releases the owner or operator from the requirements of this section in accordance with sub.
(9).
NR 661.0143(5)(j)
(j) An owner or operator may meet the requirements of this section by obtaining a written guarantee. The guarantor shall be the direct or higher-tier parent corporation of the owner or operator, a firm whose parent corporation is also the parent corporation of the owner or operator, or a firm with a “substantial business relationship” with the owner or operator. The guarantor shall meet the requirements for owners or operators in pars.
(a) to
(h) and shall comply with the terms of the guarantee. The wording of the guarantee shall be identical to the wording specified in s.
NR 661.0151 (7) (a). A certified copy of the guarantee shall accompany the items sent to the department as specified in par.
(c). One of these items shall be the letter from the guarantor's chief financial officer. If the guarantor's parent corporation is also the parent corporation of the owner or operator, the letter shall describe the value received in consideration of the guarantee. If the guarantor is a firm with a “substantial business relationship” with the owner or operator, this letter shall describe this “substantial business relationship” and the value received in consideration of the guarantee. The terms of the guarantee shall provide all of the following:
NR 661.0143(5)(j)1.
1. Following a determination by the department that the hazardous secondary material at the owner or operator's facility covered by this guarantee do not meet the conditions of the exclusion under s.
NR 661.0004 (1) (x), the guarantor will dispose of any hazardous secondary material as hazardous waste and close the facility in accordance with closure requirements under ch.
NR 664 or
665, as applicable, or establish a trust fund as specified in sub.
(1) in the name of the owner or operator in the amount of the current cost estimate.
NR 661.0143(5)(j)2.
2. The corporate guarantee will remain in force unless the guarantor sends notice of cancellation by certified mail to the owner or operator and to the department. Cancellation may not occur, however, during the 120 days beginning on the date of receipt of the notice of cancellation by both the owner or operator and the department, as evidenced by the return receipts.
NR 661.0143(5)(j)3.
3. If the owner or operator fails to provide alternate financial assurance as specified in this section and obtain the written approval of such alternate assurance from the department within 90 days after receipt by both the owner or operator and the department of a notice of cancellation of the corporate guarantee from the guarantor, the guarantor will provide such alternate financial assurance in the name of the owner or operator.
NR 661.0143(6)
(6)
Use of multiple financial mechanisms. An owner or operator may satisfy the requirements of this section by establishing more than one financial mechanism per facility. These mechanisms are limited to trust funds, surety bonds, letters of credit, and insurance. The mechanisms shall be as specified in subs.
(1) to
(4), except that it is the combination of mechanisms, rather than the single mechanism, that shall provide financial assurance for an amount at least equal to the current cost estimate. If an owner or operator uses a trust fund in combination with a surety bond or a letter of credit, the owner or operator may use the trust fund as the standby trust fund for the other mechanisms. A single standby trust fund may be established for 2 or more mechanisms. The department may use any or all of the mechanisms to provide for the facility.
NR 661.0143(7)
(7)
Use of financial mechanism for multiple facilities.
An owner or operator may use a financial assurance mechanism specified in this section to meet the requirements of this section for more than one facility. Evidence of financial assurance submitted to the department shall include a list showing, for each facility, the EPA Identification Number, if any issued, name, address, and the amount of funds assured by the mechanism. The amount of funds available through the mechanism shall be no less than the sum of funds that would be available if a separate mechanism had been established and maintained for each facility. In directing funds available through the mechanism for any of the facilities covered by the mechanism, the department may direct only the amount of funds designated for that facility, unless the owner or operator agrees to the use of additional funds available under the mechanism.
NR 661.0143(8)(a)
(a) An owner or operator of a reclamation facility or an intermediate facility who wishes to be released from their financial assurance obligations under s.
NR 661.0004 (1) (x) 6. f. shall submit a plan for removing all hazardous secondary material residues to the department at least 180 days prior to the date on which the owner or operator expects to cease to operate under the exclusion.
NR 661.0143(8)(b)1.
1. For each hazardous secondary material storage unit subject to financial assurance requirements under s.
NR 661.0004 (1) (x) 6. f., a description of how all excluded hazardous secondary material will be recycled or sent for recycling, and how all residues, contaminated containment systems, contaminated soils, subsoils, structures, and equipment will be removed or decontaminated as necessary to protect human health and the environment.
NR 661.0143(8)(b)2.
2. A detailed description of the steps necessary to remove or decontaminate all hazardous secondary material residues and contaminated containment system components, equipment, structures, and soils including procedures for cleaning equipment and removing contaminated soils, methods for sampling and testing surrounding soils, and criteria for determining the extent of decontamination necessary to protect human health and the environment.
NR 661.0143(8)(b)3.
3. A detailed description of any other activities necessary to protect human health and the environment during this timeframe, including leachate collection, run-on and run-off control.
NR 661.0143(8)(b)4.
4. A schedule for conducting the activities described that, at a minimum, includes the total time required to remove all excluded hazardous secondary material for recycling and decontaminate all units subject to financial assurance under s.
NR 661.0004 (1) (x) 6. f. and the time required for intervening activities that will allow tracking of the progress of decontamination.
NR 661.0143(8)(c)
(c) The department will provide the owner or operator and the public, through a newspaper notice, the opportunity to submit written comments on the plan and request modifications to the plan no later than 30 days from the date of the notice. The department will also, in response to a request or at the department's discretion, hold a public hearing whenever such a hearing might clarify one or more issues concerning the plan. The department will give public notice of the hearing at least 30 days before it occurs. Public notice of the hearing may be given at the same time as notice of the opportunity for the public to submit written comments, and the 2 notices may be combined. The department will approve, modify, or disapprove the plan within 90 days of its receipt. If the department does not approve the plan, the department shall provide the owner or operator with a detailed written statement of reasons for the refusal and the owner or operator shall modify the plan or submit a new plan for approval within 30 days after receiving such written statement. The department will approve or modify this plan in writing within 60 days. If the department modifies the plan, this modified plan becomes the approved plan. The department shall assure that the approved plan is consistent with this subsection. A copy of the modified plan with a detailed statement of reasons for the modifications shall be mailed to the owner or operator.
NR 661.0143(8)(d)
(d) Within 60 days of completion of the activities described for each hazardous secondary material management unit, the owner or operator shall submit to the department, by registered mail, a certification that all hazardous secondary material have been removed from the unit and the unit has been decontaminated in accordance with the specifications in the approved plan. The certification shall be signed by the owner or operator and by a qualified professional engineer. Documentation supporting the professional engineer's certification shall be furnished to the department, upon request, until the department releases the owner or operator from the financial assurance requirements under s.
NR 661.0004 (1) (x) 6. f. NR 661.0143(9)
(9)
Release of the owner or operator from the requirements of this section. Within 60 days after receiving certifications from the owner or operator and a qualified professional engineer that all hazardous secondary material have been removed from the facility or a unit at the facility and the facility or a unit has been decontaminated in accordance with the approved plan under sub.
(8), the department will notify the owner or operator in writing that the owner or operator is no longer required under s.
NR 661.0004 (1) (x) 6. f. to maintain financial assurance for that facility or a unit at the facility, unless the department has reason to believe that all hazardous secondary material have not been removed from the facility or unit at a facility or that the facility or unit has not been decontaminated in accordance with the approved plan. The department shall provide the owner or operator a detailed written statement of any such reason to believe that all hazardous secondary material have not been removed from the unit or that the unit has not been decontaminated in accordance with the approved plan.
NR 661.0143 History
History: CR 19-082: cr.
Register August 2020 No. 776, eff. 9-1-20; correction in (1) (g), (4) (d), (5) (c) 3. made under s.
35.17, Stats.,
Register August 2020 No. 776;
correction in (2) (d) 1. made under s. 13.92 (4) (b) 7., Stats., Register April 2021 No. 784. NR 661.0147(1)(1)
Coverage for sudden accidental occurences. An owner or operator of a hazardous secondary material reclamation facility or an intermediate facility subject to financial assurance requirements under s.
NR 661.0004 (1) (x) 6. f., or a group of such facilities, shall demonstrate financial responsibility for bodily injury and property damage to third parties caused by sudden accidental occurrences arising from operations of the facility or group of facilities. The owner or operator shall have and maintain liability coverage for sudden accidental occurrences in the amount of at least $1 million per occurrence with an annual aggregate of at least $2 million, exclusive of legal defense costs. This liability coverage may be demonstrated as follows:
NR 661.0147(1)(a)
(a) An owner or operator may demonstrate the required liability coverage by having liability insurance. The liability insurance shall meet all of the following conditions:
NR 661.0147(1)(a)1.
1. Each insurance policy shall be amended by attachment of the hazardous secondary material facility liability endorsement, or evidenced by a certificate of liability insurance. The wording of the endorsement shall be identical to the wording specified in s.
NR 661.0151 (8). The wording of the certificate of insurance shall be identical to the wording specified in s.
NR 661.0151 (9). The owner or operator shall submit a signed duplicate original of the endorsement or the certificate of insurance to the department. If requested by the department, the owner or operator shall provide a signed duplicate original of the insurance policy.
NR 661.0147(1)(a)2.
2. Each insurance policy shall be issued by an insurer which, at a minimum, is licensed to transact the business of insurance, or eligible to provide insurance as an excess or surplus lines insurer, in one or more states.
NR 661.0147(1)(b)
(b) An owner or operator may meet the requirements of this section by passing a financial test or using the guarantee for liability coverage as specified in subs.
(6) and
(7).
NR 661.0147(1)(c)
(c) An owner or operator may meet the requirements of this section by obtaining a letter of credit for liability coverage as specified in sub.
(8).
NR 661.0147(1)(d)
(d) An owner or operator may meet the requirements of this section by obtaining a surety bond for liability coverage as specified in sub.
(9).
NR 661.0147(1)(e)
(e) An owner or operator may meet the requirements of this section by obtaining a trust fund for liability coverage as specified in sub.
(10).
NR 661.0147(1)(f)
(f) An owner or operator may demonstrate the required liability coverage through the use of combinations of insurance, financial test, guarantee, letter of credit, surety bond, and trust fund, except that the owner or operator may not combine a financial test covering part of the liability coverage requirement with a guarantee unless the financial statement of the owner or operator is not consolidated with the financial statement of the guarantor. The amounts of coverage demonstrated shall total at least the minimum amounts required by this section. If the owner or operator demonstrates the required coverage through the use of a combination of financial assurances under this paragraph, the owner or operator shall specify at least one assurance as “primary” coverage and shall specify other assurance as “excess” coverage.
NR 661.0147(1)(g)
(g) An owner or operator shall notify the department in writing within 30 days whenever one of the following occurs:
NR 661.0147(1)(g)1.
1. A claim results in a reduction in the amount of financial assurance for liability coverage provided by a financial instrument authorized in pars.
(a) to
(f).
