Chapter NR 665

NR 665.0118(7)(a)1.a. a. The secure nature of the hazardous waste management unit or facility makes the long-term care requirements unnecessary or supports reduction of the long-term care period specified in the current long-term care plan (e.g., leachate or groundwater monitoring results, characteristics of the wastes, application of advanced technology or alternative disposal, treatment or re-use techniques indicate that the facility is secure).

NR 665.0118(7)(a)1.b. b. The requested extension in the long-term care period or alteration of long-term care requirements is necessary to prevent threats to human health and the environment (e.g., leachate or groundwater monitoring results indicate a potential for migration of hazardous wastes at levels which may be harmful to human health and the environment).

NR 665.0118(7)(a)2. 2. The department will consider these petitions only when they present new and relevant information not previously considered by the department. Whenever the department is considering a petition, it will provide the owner or operator and the public, through a newspaper notice, the opportunity to submit written comments within 30 days of the date of the notice. The department will also, in response to a request or at its own discretion, hold a public hearing whenever a hearing might clarify one or more issues concerning the long-term care plan. The department will give the 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 written public comments, and the 2 notices may be combined.) After considering the comments, the department will issue a final determination, based upon the criteria set forth in this paragraph.

NR 665.0118(7)(a)3. 3. If the department denies the petition, it will send the petitioner a brief written response giving a reason for the denial.

NR 665.0118(7)(b) (b) The department may tentatively decide to modify the long-term care plan if it deems it necessary to prevent threats to human health and the environment. The department may propose to extend or reduce the long-term care period applicable to a hazardous waste management unit or facility based on cause or alter the requirements of the long-term care period based on cause.

NR 665.0118(7)(b)1. 1. The department will provide the owner or operator and the affected public, through a newspaper notice, the opportunity to submit written comments within 30 days of the date of the notice and the opportunity for a public hearing as in par. (a) 2. After considering the comments, the department will issue a final determination.

NR 665.0118(7)(b)2. 2. The department will base its final determination upon the same criteria as required for petitions under par. (a) 1. A modification of the long-term care plan may include, where appropriate, the temporary suspension rather than permanent deletion of one or more long-term care requirements. At the end of the specified period of suspension, the department would then determine whether the requirements should be permanently discontinued or reinstated to prevent threats to human health and the environment.

NR 665.0118 History History: CR 05-032: cr. Register July 2006 No. 607, eff. 8-1-06; CR 19-082: am. (5) (b) Register August 2020 No. 776, eff. 9-1-20.

NR 665.0119 NR 665.0119 Long-term care notices.

NR 665.0119(1) (1) No later than 60 days after certification of closure of each hazardous waste disposal unit, the owner or operator shall submit to the local zoning authority, or the authority with jurisdiction over local land use, and to the department, a record of the type, location and quantity of hazardous wastes disposed of within each cell or other disposal unit of the facility. For hazardous wastes disposed of before July 1, 1985, the owner or operator shall identify the type, location and quantity of the hazardous wastes to the best of the owner or operator’s knowledge and in accordance with any records the owner or operator has kept.

NR 665.0119(2) (2) Within 60 days of certification of closure of the first hazardous waste disposal unit and within 60 days of certification of closure of the last hazardous waste disposal unit, the owner or operator shall do both of the following:

NR 665.0119(2)(a) (a) Record, in accordance with ch. 706, Stats., a notation on the deed to the facility property, or on some other instrument which is normally examined during title search, that will in perpetuity notify any potential purchaser of the property of all of the following:

NR 665.0119(2)(a)1. 1. The land has been used to manage hazardous wastes.

NR 665.0119(2)(a)2. 2. Its use is restricted under the rules in this subchapter.

NR 665.0119(2)(a)3. 3. The survey plat and record of the type, location and quantity of hazardous wastes disposed of within each cell or other hazardous waste disposal unit of the facility required by s. NR 665.0116 and sub. (1) have been filed with the local zoning authority or the authority with jurisdiction over local land use and with the department.

NR 665.0119(2)(b) (b) Submit a certification signed by the owner or operator that the owner or operator has recorded the notation specified in par. (a) and a copy of the document in which the notation has been placed, to the department.

NR 665.0119(3) (3) If the owner or operator or any subsequent owner of the land upon which a hazardous waste disposal unit was located wishes to remove hazardous wastes and hazardous waste residues, the liner, if any, and all contaminated structures, equipment and soils, the owner or operator shall request a modification to the approved long-term care plan in accordance with the requirements of s. NR 665.0118 (7). The owner or operator shall demonstrate that the removal of hazardous wastes will satisfy the criteria of s. NR 665.0117 (3). By removing hazardous waste, the owner or operator may become a generator of hazardous waste and shall manage it in accordance with all applicable requirements of chs. NR 660 to 673. If the owner or operator is granted approval to conduct the removal activities, the owner or operator may request that the department approve either of the following:

NR 665.0119(3)(a) (a) The removal of the notation on the deed to the facility property or other instrument normally examined during title search.

NR 665.0119(3)(b) (b) The addition of a notation to the deed or instrument indicating the removal of the hazardous waste.

NR 665.0119 History History: CR 05-032: cr. Register July 2006 No. 607, eff. 8-1-06.

NR 665.0120 NR 665.0120 Certification of completion of long-term care. No later than 60 days after the completion of the established long-term care period for each hazardous waste disposal unit, the owner or operator shall submit to the department, by registered mail, a certification that the long-term care period for the hazardous waste disposal unit was performed in accordance with the specifications in the approved long-term care plan. The owner or operator and a qualified professional engineer shall sign the certification. 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 for long-term care under s. NR 665.0145 (10).

NR 665.0120 History History: CR 05-032: cr. Register July 2006 No. 607, eff. 8-1-06; CR 16-007: am. Register July 2017 No. 739, eff. 8-1-17.

NR 665.0121 NR 665.0121 Long-term care requirements for facilities that obtain enforceable documents in lieu of long-term care licenses.

NR 665.0121(1) (1) Owners and operators who are subject to the requirement to obtain a long-term care license under s. NR 670.001 (3), but who obtain enforceable documents in lieu of long-term care licenses, as provided under s. NR 670.001 (3) (g), shall comply with all of the following requirements:

NR 665.0121(1)(a) (a) The requirements to submit information about the facility in s. NR 670.028.

NR 665.0121(1)(b) (b) The requirements for facility-wide corrective action in s. NR 664.0101.

NR 665.0121(1)(c) (c) The requirements of ss. NR 664.0091 to 664.0100.

NR 665.0121(2) (2) 

NR 665.0121(2)(a) (a) The department, in issuing enforceable documents under this section in lieu of licenses, will assure a meaningful opportunity for public involvement which, at a minimum, includes public notice and opportunity for public comment as follows:

NR 665.0121(2)(a)1. 1. When the department becomes involved in a remediation at the facility as a regulatory or enforcement matter.

NR 665.0121(2)(a)2. 2. On the proposed preferred remedy and the assumptions upon which the remedy is based, in particular those related to land use and site characterization.

NR 665.0121(2)(a)3. 3. At the time of a proposed decision that remedial action is complete at the facility. These requirements shall be met before the department may consider that the facility has met the requirements of s. NR 670.001 (3) (g), unless the facility qualifies for a modification to these public involvement procedures under par. (b) or (c).

NR 665.0121(2)(b) (b) If the department determines that even a short delay in the implementation of a remedy would adversely affect human health or the environment, the department may delay compliance with the requirements of par. (a) and implement the remedy immediately. However, the department shall assure involvement of the public at the earliest opportunity, and, in all cases, upon making the decision that additional remedial action is not needed at the facility.

NR 665.0121(2)(c) (c) The department may allow a remediation initiated prior to August 1, 2006 to substitute for corrective action required under a long-term care license even if the public involvement requirements of par. (a) have not been met so long as the department assures that notice and comment on the decision that no further remediation is necessary to protect human health and the environment takes place at the earliest reasonable opportunity after August 1, 2006.

NR 665.0121 History History: CR 05-032: cr. Register July 2006 No. 607, eff. 8-1-06.

subch. H of ch. NR 665 Subchapter H — Financial Requirements

NR 665.0140 NR 665.0140 Applicability.

NR 665.0140(1) (1) The requirements of ss. NR 665.0142, 665.0143, 665.0147 and 665.0148 apply to owners or operators of all hazardous waste facilities, except as provided otherwise in this section or in s. NR 665.0001.

NR 665.0140(2) (2) The requirements of ss. NR 665.0144 and 665.0146 apply only to owners and operators of one or more of the following:

NR 665.0140(2)(a) (a) Disposal facilities.

NR 665.0140(2)(b) (b) Tank systems that are required under s. NR 664.0197 to meet the requirements for landfills.

NR 665.0140(2)(c) (c) Containment buildings that are required under s. NR 665.1102 to meet the requirements for landfills.

NR 665.0140(3) (3) States and the federal government are exempt from the requirements of s. NR 665.0147.

NR 665.0140(4) (4) The department may replace all or part of the requirements of this subchapter applying to a regulated unit with alternative requirements for financial assurance set out in the license or in an enforceable document (as defined in s. NR 670.001 (3) (g)), where the department does all of the following:

NR 665.0140(4)(a) (a) Prescribes alternative requirements for the regulated unit under s. NR 665.0090 (6) or 665.0110 (4) or both.

NR 665.0140(4)(b) (b) Determines that it is not necessary to apply the requirements of this subchapter because the alternative financial assurance requirements will protect human health and the environment.

NR 665.0140 History History: CR 05-032: cr. Register July 2006 No. 607, eff. 8-1-06.

NR 665.0141 NR 665.0141 Definitions. When used in this subchapter, the following terms have the meanings given below.

NR 665.0141(1) (1) “Captive insurance company” means a closely-held company owned by one or more organizations, parents, whose original purpose was and may continue to be, to insure some or all of the risks of shareholders or affiliated organizations.

NR 665.0141(2) (2) “Closure plan” means the plan for closure prepared in accordance with the requirements of s. NR 665.0112.

NR 665.0141(3) (3) “Current closure cost estimate” means the most recent of the estimates prepared in accordance with s. NR 665.0142 (1) to (3).

NR 665.0141(4) (4) “Current long-term care cost estimate” means the most recent of the estimates prepared in accordance with s. NR 665.0144 (1) to (3).

NR 665.0141(5) (5) “Parent corporation” means a corporation which directly owns at least 50% of the voting stock of the corporation which is the facility owner or operator; the latter corporation is deemed a “subsidiary” of the parent corporation.

NR 665.0141(6) (6) “Long-term care plan” means the plan for long-term care prepared in accordance with the requirements of ss. NR 665.0117 to 665.0120.

NR 665.0141(7) (7) The following terms are used in the specifications for the financial tests for liability coverage. The definitions are intended to assist in the understanding of this chapter and are not intended to limit the meanings of terms in a way that conflicts with generally accepted accounting practices.

NR 665.0141(7)(a) (a) “Assets” means all existing and all probable future economic benefits obtained or controlled by a particular entity.

NR 665.0141(7)(b) (b) “Current assets” means cash or other assets or resources commonly identified as those which are reasonably expected to be realized in cash or sold or consumed during the normal operating cycle of the business.

NR 665.0141(7)(c) (c) “Current liabilities” means obligations whose liquidation is reasonably expected to require the use of existing resources properly classifiable as current assets or the creation of other current liabilities.

NR 665.0141(7)(d) (d) “Current plugging and abandonment cost estimate” means the most recent of the estimates prepared in accordance with ch. NR 815.

NR 665.0141(7)(e) (e) “Independently audited” refers to an audit performed by an independent certified public accountant in accordance with generally accepted auditing standards.

NR 665.0141(7)(f) (f) “Liabilities” means probable future sacrifices of economic benefits arising from present obligations to transfer assets or provide services to other entities in the future as a result of past transactions or events.

NR 665.0141(7)(g) (g) “Net working capital” means current assets minus current liabilities.

NR 665.0141(7)(h) (h) “Net worth” has the meaning given in s. 289.41 (1) (c), Stats.

NR 665.0141(7)(i) (i) “Tangible net worth” means the tangible assets that remain after deducting liabilities. The assets would not include intangibles such as goodwill and rights to patents or royalties.

NR 665.0141(8) (8) In the liability insurance requirements, the terms “bodily injury” and “property damage” shall have the meanings given these terms by applicable state law. However, these terms do not include those liabilities which, consistent with standard industry practice, are excluded from coverage in liability policies for bodily injury and property damage. The department intends the meanings of other terms used in the liability insurance requirements to be consistent with their common meanings within the insurance industry. The definitions given below of several of the terms are intended to assist in the understanding of this chapter and are not intended to limit their meanings in a way that conflicts with general insurance industry usage.

NR 665.0141(8)(a) (a) “Accidental occurrence” means an accident, including continuous or repeated exposure to conditions, which results in bodily injury or property damage neither expected nor intended from the standpoint of the insured.

NR 665.0141(8)(b) (b) “Legal defense costs” means any expenses that an insurer incurs in defending against claims of third parties brought under the terms and conditions of an insurance policy.

NR 665.0141(8)(c) (c) “Nonsudden accidental occurrence” means an occurrence which takes place over time and involves continuous or repeated exposure.

NR 665.0141(8)(d) (d) “Sudden accidental occurrence” means an occurrence which is not continuous or repeated in nature.

NR 665.0141(9) (9) “Substantial business relationship” means the extent of a business relationship necessary under applicable state law to make a guarantee contract issued incident to that relationship valid and enforceable. A substantial business relationship shall arise from a pattern of recent or ongoing business transactions, in addition to the guarantee itself, such that a currently existing business relationship between the guarantor and the owner or operator is demonstrated to the satisfaction of the department.

NR 665.0141 History History: CR 05-032: cr. Register July 2006 No. 607, eff. 8-1-06.

NR 665.0142 NR 665.0142 Cost estimate for closure.

NR 665.0142(1) (1) The owner or operator shall have a detailed written estimate, in current dollars, of the cost of closing the facility in accordance with the requirements in ss. NR 665.0111 to 665.0115 and applicable closure requirements in ss. NR 665.0197, 665.0228, 665.0258, 665.0310, 665.0351, 665.0381, 665.0404 and 665.1102.

NR 665.0142(1)(a) (a) The estimate shall equal the cost of final closure at the point in the facility’s active life when the extent and manner of its operation would make closure the most expensive, as indicated by its closure plan (see s. NR 665.0112 (2)).

NR 665.0142(1)(b) (b) The closure cost estimate shall be based on the costs to the owner or operator of hiring a third party to close the facility. A third party is a party who is neither a parent corporation nor a subsidiary of the owner or operator. The owner or operator may use costs for on-site disposal if the owner or operator can demonstrate that on-site disposal capacity will exist at all times over the life of the facility.

NR 665.0142(1)(c) (c) The closure cost estimate may not incorporate any salvage value that may be realized with the sale of hazardous wastes, or non-hazardous wastes if applicable under s. NR 665.0113 (4), facility structures or equipment, land or other assets associated with the facility at the time of partial or final closure.

NR 665.0142(1)(d) (d) The owner or operator may not incorporate a zero cost for hazardous wastes, or non-hazardous wastes if applicable under s. NR 665.0113 (4), that might have economic value.

NR 665.0142(2) (2) During the active life of the facility, the owner or operator shall adjust the closure cost estimate for inflation within 60 days prior to the anniversary date of the establishment of the financial instrument(s) used to comply with s. NR 665.0143. For owners and operators of disposal facilities using the net worth test, the closure cost estimate shall be updated for inflation as required under s. 289.41 (5) (d), Stats. The adjustment may be made by recalculating the closure cost estimate in current dollars, or by using an inflation factor derived from the most recent implicit price deflator for gross domestic product published by the U.S. department of commerce in its Survey of Current Business, as specified in pars. (a) and (b). The inflation factor is the result of dividing the latest published annual deflator by the deflator for the previous year.

NR 665.0142(2)(a) (a) The first adjustment shall be made by multiplying the closure cost estimate by the inflation factor. The result is the adjusted closure cost estimate.

NR 665.0142(2)(b) (b) Subsequent adjustments shall be made by multiplying the latest adjusted closure cost estimate by the latest inflation factor.

NR 665.0142(3) (3) During the active life of the facility, the owner or operator shall revise the closure cost estimate no later than 30 days after a revision has been made to the closure plan which increases the cost of closure. If the owner or operator has an approved closure plan, the closure cost estimate shall be revised no later than 30 days after the department has approved the request to modify the closure plan, if the change in the closure plan increases the cost of closure. The revised closure cost estimate shall be adjusted for inflation as specified in sub. (2).

NR 665.0142(4) (4) The owner or operator shall keep the following at the facility during the operating life of the facility: The latest closure cost estimate prepared in accordance with subs. (1) to (3) and, when this estimate has been adjusted in accordance with sub. (2), the latest adjusted closure cost estimate.

NR 665.0142 History History: CR 05-032: cr. Register July 2006 No. 607, eff. 8-1-06.

NR 665.0143 NR 665.0143 Financial assurance for closure. By June 1, 1984, an owner or operator of each facility shall establish financial assurance for closure of the facility. The owner or operator shall choose from the options as specified in subs. (1) to (7).

NR 665.0143(1) (1) Closure trust fund.

NR 665.0143(1)(a) (a) An owner or operator may satisfy the requirements of this section by establishing a closure trust fund which conforms to the requirements of this subsection and submitting an originally signed duplicate of the trust agreement to the department. The trustee shall be an entity which has the authority to act as a trustee and whose trust operations are regulated and examined by a federal or state agency.

NR 665.0143(1)(b) (b) The wording of the trust agreement shall be identical to the wording on the department form specified in s. NR 664.0151 (1) (a) and the trust agreement shall be accompanied by a formal certification of acknowledgment as specified in s. NR 664.0151 (1) (b). Schedule A of the trust agreement shall be updated within 60 days after a change in the amount of the current closure cost estimate covered by the agreement.

NR 665.0143(1)(c) (c) Payments into the trust fund shall be made annually by the owner or operator over the 20 years beginning on June 1, 1984 or over the remaining operating life of the facility as estimated in the closure plan, whichever period is shorter. For the purposes of this section, this period is referred to as the “pay-in period.” The payments into the closure trust fund shall be made as follows:

NR 665.0143(1)(c)1. 1. The first payment shall be made by June 1, 1984, except as provided in par. (e). The first payment shall be at least equal to the current closure cost estimate, except as provided in sub. (8), divided by the number of years in the pay-in period.