NR 661.0147(3)
(3)
Request for variance. If an owner or operator demonstrates to the satisfaction of the department that the levels of financial responsibility required by sub.
(1) or
(2) are not consistent with the degree and duration of risk associated with treatment or storage at the facility or group of facilities, the owner or operator may obtain a variance from the department. The request for a variance shall be submitted in writing to the department. If granted, the variance will take the form of an adjusted level of required liability coverage based on the department's assessment of the degree and duration of risk associated with the ownership or operation of the facility or group of facilities. The department may require an owner or operator who requests a variance to provide technical and engineering information as deemed necessary by the department to determine a level of financial responsibility other than that required by sub.
(1) or
(2).
NR 661.0147(4)
(4)
Adjustments by the department. if the department determines that the levels of financial responsibility required under sub.
(1) or
(2) are not consistent with the degree and duration of risk associated with treatment or storage at the facility or group of facilities, the department may adjust the level of financial responsibility required under sub.
(1) or
(2) as may be necessary to protect human health and the environment. This adjusted level will be based on the department's assessment of the degree and duration of risk associated with the ownership or operation of the facility or group of facilities. In addition, if the department determines that there is a significant risk to human health and the environment from non-sudden accidental occurrences resulting from the operations of a facility that is not a surface impoundment, pile, or land treatment facility, the department may require that the owner or operator of the facility comply with sub.
(2). The owner or operator shall furnish to the department, within a reasonable time, any information the department requests to determine whether cause exists for such adjustments of level or type of coverage.
NR 661.0147(5)
(5)
Period of coverage. 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 s.
NR 661.0143 (8), the department shall 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 liability coverage for that facility or a unit at the facility, unless the department has reason to believe that 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.
NR 661.0147(6)(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 of the following:
NR 661.0147(6)(a)1.a.
a. Net working capital and tangible net worth each at least 6 times the amount of liability coverage to be demonstrated by this test.
NR 661.0147(6)(a)1.c.
c. Assets in the United States amounting to at least 90 percent of the owner's or operator's total assets
, or at least 6 times the amount of liability coverage to be demonstrated by this test.
NR 661.0147(6)(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 661.0147(6)(a)2.c.
c. Tangible net worth at least 6 times the amount of liability coverage to be demonstrated by this test.
NR 661.0147(6)(a)2.d.
d. Assets in the United States amounting to either at least 90 percent of the owner's or operator's total assets
, or at least 6 times the amount of liability coverage to be demonstrated by this test.
NR 661.0147(6)(b)
(b) The phrase “amount of liability coverage” as used in par.
(a) refers to the annual aggregate amounts for which coverage is required under subs.
(1) and
(2) and the annual aggregate amounts for which coverage is required under ss.
NR 664.0147 (1) and
(2) and
665.0147 (1) and
(2).
NR 661.0147(6)(c)
(c) To demonstrate that the owner or operator meets the test in par.
(a), the owner or operator shall submit all of the following to the department:
NR 661.0147(6)(c)1.
1. A letter signed by the owner's or operator's chief financial officer and worded as specified in s.
NR 661.0151 (6). If an owner or operator is using the financial test to demonstrate both assurance as specified by s.
NR 661.0143 (5), and liability coverage, the owner or operator shall submit the letter specified in s.
NR 661.0151 (6) to cover both forms of financial responsibility
. A separate letter as specified in s.
NR 661.0151 (5) is not required.
NR 661.0147(6)(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 661.0147(6)(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 difference.
NR 661.0147(6)(d)
(d) The owner or operator may obtain a one-time 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 shall 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. This letter from the chief financial officer shall contain all of the following:
NR 661.0147(6)(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 661.0147(6)(d)3.
3. Specify for each facility to be covered by the test the EPA Identification Number, name, address, the amount of liability coverage and, when applicable, current closure and post-closure cost estimates to be covered by the test.
NR 661.0147(6)(d)4.
4. Specify the date ending the owner's or operator's last complete fiscal year before September 1, 2020
.
NR 661.0147(6)(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 661.0147(6)(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 661.0147(6)(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 the items specified in par.
(c) 1. to
3. NR 661.0147(6)(f)
(f) If the owner or operator no longer meets the requirements under par.
(a), the owner or operator shall obtain insurance, a letter of credit, a surety bond, a trust fund, or a guarantee for the entire amount of required liability coverage as specified in this section. Evidence of liability coverage shall be submitted to the department 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 test requirements.
NR 661.0147(6)(g)
(g) The department may disallow use of the test in par.
(a) 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 as specified 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 evidence of insurance for the entire amount of required liability coverage as specified in this section within 30 days after notification of disallowance.
NR 661.0147(7)(a)(a) Subject to par.
(b), an owner or operator may meet the requirements of this section by obtaining a written guarantee, hereinafter referred to as “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 under sub.
(6) (a) to
(f). The wording of the guarantee shall be identical to the wording specified in s.
NR 661.0151 (7) (b). A certified copy of the guarantee shall accompany the items sent to the department as specified in sub.
(6) (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, this 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.
NR 661.0147(7)(a)1.
1. If the owner or operator fails to satisfy a judgment based on a determination of liability for bodily injury or property damage to third parties caused by sudden or non-sudden accidental occurrences, or both as the case may be, arising from the operation of facilities covered by this corporate guarantee, or fails to pay an amount agreed to in settlement of claims arising from or alleged to arise from such injury or damage, the guarantor will do so up to the limits of coverage.
NR 661.0147(7)(b)1.1. In the case of corporations incorporated in the United States, a guarantee may be used to satisfy the requirements of this section only if the attorneys general or insurance commissioners of the following states have submitted a written statement to the department that a guarantee executed as described in this section and s.
NR 661.0151 (7) (b) is a legally valid and enforceable obligation in that state:
NR 661.0147(7)(b)2.
2. In the case of corporations incorporated outside the United States, a guarantee may be used to satisfy the requirements of this section only if all of the following conditions are met:
NR 661.0147(7)(b)2.a.
a. The non-U.S. corporation has identified a registered agent for service of process in each state in which a facility covered by the guarantee is located and in the state in which it has its principal place of business.
NR 661.0147(7)(b)2.b.
b. The attorney general or insurance commissioner of each state in which a facility covered by the guarantee is located and the state in which the guarantor corporation has its principal place of business, has submitted a written statement to the department that a guarantee executed as described in this section and s.
NR 661.0151 (7) (b) is a legally valid and enforceable obligation in that state.
NR 661.0147(8)(a)(a) An owner or operator may satisfy the requirements of this section by obtaining an irrevocable standby letter of credit that conforms to the requirements of this subsection and submitting a copy of the letter of credit to the department.
NR 661.0147(8)(b)
(b) The financial 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 a federal or state agency.
NR 661.0147(8)(d)
(d) An owner or operator who uses a letter of credit to satisfy the requirements of this section may also establish a standby trust fund. Under the terms of the letter of credit, all amounts paid pursuant to a draft by the trustee of the standby trust will be deposited by the issuing institution into the standby trust in accordance with instructions from the trustee. The trustee of the standby trust fund shall be an entity that has the authority to act as a trustee and whose trust operations are regulated and examined by a federal or state agency.
NR 661.0147(9)(a)(a) An owner or operator may satisfy the requirements of this section by obtaining a surety bond that conforms to the requirements of this subsection and submitting a copy of the bond to the department.
NR 661.0147(9)(b)
(b) The surety company issuing the bond shall be among those listed as acceptable sureties on federal bonds in the most recent Circular 570 of the U.S. department of the treasury.
NR 661.0147(9)(d)
(d) A surety bond may be used to satisfy the requirements of this section only if the attorneys general or insurance commissioners of the following states have submitted a written statement to the department that a surety bond executed as described in this section and s.
NR 661.0151 (7) (b) is a legally valid and enforceable obligation in that state:
NR 661.0147(10)(a)(a) An owner or operator may satisfy the requirements of this section by establishing a trust fund that conforms to the requirements of this subsection and submitting an originally signed duplicate of the trust agreement to the department.
NR 661.0147(10)(b)
(b) The trustee shall be an entity that has the authority to act as a trustee and whose trust operations are regulated and examined by a federal or state agency.
NR 661.0147(10)(c)
(c) The trust fund for liability coverage shall be funded for the full amount of the liability coverage to be provided by the trust fund before it may be relied upon to satisfy the requirements of this section. If at any time after the trust fund is created the amount of funds in the trust fund is reduced below the full amount of the liability coverage to be provided, the owner or operator, by the anniversary date of the establishment of the fund, shall either add sufficient funds to the trust fund to cause its value to equal the full amount of liability coverage to be provided, or obtain other financial assurance as specified in this section to cover the difference. For the purposes of this paragraph, “the full amount of the liability coverage to be provided” means the amount of coverage for sudden or non-sudden occurrences, or both, required to be provided by the owner or operator by this section, less the amount of financial assurance for liability coverage that is being provided by other financial assurance mechanisms being used to demonstrate financial assurance by the owner or operator.
NR 661.0147 History
History: CR 19-082: cr.
Register August 2020 No. 776, eff. 9-1-20; correction in (2) (f), (10) (c) made under s.
13.92 (4) (b) 7., Stats., and correction in (6) (c) 3., (10) (c) made under s.
35.17, Stats.,
Register August 2020 No. 776;
correction in (7) (b) 2. b. made under s. 13.92 (4) (b) 7., Stats., Register April 2021 No. 784. NR 661.0148
NR 661.0148
Incapacity of owners or operators, guarantors, or financial institutions. NR 661.0148(1)(1)
An owner or operator shall notify the department by certified mail of the commencement of a voluntary or involuntary bankruptcy proceeding under Title 11, U.S. Code, naming the owner or operator as debtor, within 10 days after commencement of the proceeding. A guarantor of a corporate guarantee as specified in s.
NR 661.0143 (5) shall make such a notification if named as debtor, as required under the terms of the corporate guarantee.
NR 661.0148(2)
(2) An owner or operator who fulfills the requirements specified in s.
NR 661.0143 or
661.0147 by obtaining a trust fund, surety bond, letter of credit, or insurance policy will be deemed to be without the required financial assurance or liability coverage in the event of bankruptcy of the trustee or issuing institution, or a suspension or revocation of the authority of the trustee institution to act as trustee or of the institution issuing the surety bond, letter of credit, or insurance policy to issue such instruments. The owner or operator shall establish other financial assurance or liability coverage within 60 days after such an event.
NR 661.0148 History
History: CR 19-082: cr.
Register August 2020 No. 776, eff. 9-1-20; correction in (2) made under s.
35.17, Stats.,
Register August 2020 No. 776.
NR 661.0151(1)(a)
(a) A trust agreement for a trust fund, as specified in s.
NR 661.0143 (1) shall be worded as follows, except that instructions in brackets are to be replaced with the relevant information and the brackets deleted:
Trust Agreement
Trust Agreement, the “Agreement,” entered into as of [date] by and between [name of the owner or operator], a [name of State] [insert “corporation,” “partnership,” “association,” or “proprietorship”], the “Grantor,” and [name of corporate trustee], [insert “incorporated in the State of -----” or “a national bank”], the “Trustee.”
Whereas, the Wisconsin Department of Natural Resources, “the department,” has established certain regulations applicable to the Grantor, requiring that an owner or operator of a facility regulated under ch.
NR 664, or
665, Wis. Adm. Code, or satisfying the conditions of the exclusion under s.
NR 661.0004 (1) (x), Wis. Adm. Code, shall provide assurance that funds will be available if needed for care of the facility under subch.
G of ch. NR 664 or subch.
G of ch. NR 665, Wis. Adm. Code as applicable,
Whereas, the Grantor has elected to establish a trust to provide all or part of such financial assurance for the facilities identified herein,
Whereas, the Grantor, acting through its duly authorized officers, has selected the Trustee to be the trustee under this agreement, and the Trustee is willing to act as trustee,
Now, Therefore, the Grantor and the Trustee agree as follows:
Section 1. Definitions. As used in this Agreement:
(a) The term “Grantor” means the owner or operator who enters into this Agreement and any successors or assigns of the Grantor.
(b) The term “Trustee” means the Trustee who enters into this Agreement and any successor Trustee.
Section 2. Identification of Facilities and Cost Estimates. This Agreement pertains to the facilities and cost estimates identified on attached Schedule A [on Schedule A, for each facility list the EPA Identification Number (if available), name, address, and the current cost estimates, or portions thereof, for which financial assurance is demonstrated by this Agreement].
Section 3. Establishment of Fund. The Grantor and the Trustee hereby establish a trust fund, the “Fund,” for the benefit of the department in the event that the hazardous secondary material of the grantor no longer meet the conditions of the exclusion under s.
NR 661.0004 (1) (x), Wis. Adm. Code. The Grantor and the Trustee intend that no third party have access to the Fund except as herein provided. The Fund is established initially as consisting of the property, which is acceptable to the Trustee, described in Schedule B attached hereto. Such property and any other property subsequently transferred to the Trustee is referred to as the Fund, together with all earnings and profits thereon, less any payments or distributions made by the Trustee pursuant to this Agreement. The Fund shall be held by the Trustee, IN TRUST, as hereinafter provided. The Trustee may not be responsible nor shall it undertake any responsibility for the amount or adequacy of, nor any duty to collect from the Grantor, any payments necessary to discharge any liabilities of the Grantor established by the department.
Section 4. Payments from the Fund. The Trustee shall make payments from the Fund as the department shall direct, in writing, to provide for the payment of the costs of the performance of activities required under subch.
G of ch. NR 664 or subch.
G of ch. NR 665, Wis. Adm. Code
, for the facilities covered by this Agreement. The Trustee shall reimburse the Grantor or other persons as specified by the department from the Fund for expenditures for such activities in such amounts as the beneficiary shall direct in writing. In addition, the Trustee shall refund to the Grantor such amounts as the depart specifies in writing. Upon refund, such funds shall no longer constitute part of the Fund as defined herein.
Section 5. Payments Comprising the Fund. Payments made to the Trustee for the Fund shall consist of cash or securities acceptable to the Trustee.
Section 6. Trustee Management. The Trustee shall invest and reinvest the principal and income of the Fund and keep the Fund invested as a single fund, without distinction between principal and income, in accordance with general investment policies and guidelines which the Grantor may communicate in writing to the Trustee from time to time, subject, however, to the provisions of this section. In investing, reinvesting, exchanging, selling, and managing the Fund, the Trustee shall discharge the duties with respect to the trust fund solely in the interest of the beneficiary and with the care, skill, prudence, and diligence under the circumstances then prevailing which persons of prudence, acting in a like capacity and familiar with such matters, would use in the conduct of an enterprise of a like character and with like aims; except that:
(a) Securities or other obligations of the Grantor, or any other owner or operator of the facilities, or any of their affiliates as defined in the Investment Company Act of 1940, as amended,
15 USC 80a-2. (a), may not be acquired or held, unless they are securities or other obligations of the Federal or a State government;
(b) The Trustee is authorized to invest the Fund in time or demand deposits of the Trustee, to the extent insured by an agency of the Federal or State government; and
(c) The Trustee is authorized to hold cash awaiting investment or distribution uninvested for a reasonable time and without liability for the payment of interest thereon.
Section 7. Commingling and Investment. The Trustee is expressly authorized in its discretion:
(a) To transfer from time to time any or all of the assets of the Fund to any common, commingled, or collective trust fund created by the Trustee in which the Fund is eligible to participate, subject to all of the provisions thereof, to be commingled with the assets of other trusts participating therein; and
(b) To purchase shares in any investment company registered under the Investment Company Act of 1940,
15 USC 80a-1 et seq., including one which may be created, managed, underwritten, or to which investment advice is rendered or the shares of which are sold by the Trustee. The Trustee may vote such shares in its discretion.
Section 8. Express Powers of Trustee. Without in any way limiting the powers and discretions conferred upon the Trustee by the other provisions of this Agreement or by law, the Trustee is expressly authorized and empowered:
(a) To sell, exchange, convey, transfer, or otherwise dispose of any property held by it, by public or private sale. No person dealing with the Trustee shall be bound to see to the application of the purchase money or to inquire into the validity or expediency of any such sale or other disposition;
(b) To make, execute, acknowledge, and deliver any and all documents of transfer and conveyance and any and all other instruments that may be necessary or appropriate to carry out the powers herein granted;
(c) To register any securities held in the Fund in its own name or in the name of a nominee and to hold any security in bearer form or in book entry, or to combine certificates representing such securities with certificates of the same issue held by the Trustee in other fiduciary capacities, or to deposit or arrange for the deposit of such securities in a qualified central depositary even though, when so deposited, such securities may be merged and held in bulk in the name of the nominee of such depositary with other securities deposited therein by another person, or to deposit or arrange for the deposit of any securities issued by the United States Government, or any agency or instrumentality thereof, with a Federal Reserve bank, but the books and records of the Trustee shall at all times show that all such securities are part of the Fund;
