NR 665.0145(7)(e)(e) If the owner or operator establishes a long-term care escrow account after having used one or more alternate mechanisms specified in this section, the first payment shall be in at least the amount that the account would contain if the escrow account were established initially and annual payments made as specified in par. (c). NR 665.0145(7)(f)(f) After the pay-in period is completed, whenever the current long-term care cost estimate changes during the operating life of the facility, the owner or operator shall compare the new estimate with the escrow agent’s most recent annual valuation of the escrow account. If the value of the account is less than the amount of the new estimate, the owner or operator, within 60 days after the change in the cost estimate, shall either deposit an amount into the account so that its value after this deposit at least equals the amount of the current long-term care cost estimate, or obtain other financial assurance as specified in this section to cover the difference. NR 665.0145(7)(g)(g) During the operating life of the facility, if the value of the escrow account is greater than the total amount of the current long-term care cost estimate, the owner or operator may submit a written request to the department for release of the amount in excess of the current long-term care cost estimate. NR 665.0145(7)(h)(h) If an owner or operator substitutes other financial assurance as specified in this section for all or part of the escrow account, the owner or operator may submit a written request to the department for release of the amount in excess of the current long-term care cost estimate covered by the escrow account. NR 665.0145(7)(i)(i) Within 60 days after receiving a request from the owner or operator for release of funds as specified in par. (g) or (h), the department will instruct the escrow agent to release to the owner or operator funds as the department specifies in writing. NR 665.0145(7)(j)(j) During the period of long-term care, the department may approve a release of funds if the owner or operator demonstrates to the department that the value of the escrow account exceeds the remaining cost of long-term care. NR 665.0145(7)(k)(k) An owner or operator or any other person authorized to conduct long-term care may request reimbursements for long-term care expenditures by submitting itemized bills to the department. Within 60 days after receiving bills for long-term care activities, the department will instruct the escrow agent to make reimbursements in those amounts as the department specifies in writing, if the department determines that the long-term care expenditures are in accordance with the approved long-term care plan or otherwise justified. If the department does not instruct the escrow agent to make the reimbursements, the department will provide the owner or operator with a detailed written statement of reasons. NR 665.0145(7)(L)(L) The department will agree to termination of the escrow account when one of the following applies: NR 665.0145(7)(L)1.1. An owner or operator substitutes alternate financial assurance as specified in this section. NR 665.0145(7)(L)2.2. The department releases the owner or operator from the requirements of this section in accordance with sub. (10). NR 665.0145(8)(8) 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 guaranteeing payment, deposits with the department, escrow accounts, letters of credit and insurance. The mechanisms shall be as specified in subs. (1) to (4), (6) and (7) except that it is the combination of mechanisms, rather than the single mechanism, which shall provide financial assurance for an amount at least equal to the current long-term care cost estimate. The department may use any or all of the mechanisms to provide for long-term care of the facility. NR 665.0145(9)(9) Use of a 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, name, address and the amount of funds for long-term care assured by the mechanism. If the facilities covered by the mechanism are in more than one state, identical evidence of financial assurance shall be submitted to and maintained with the state agency regulating hazardous waste or with the appropriate EPA regional administrator if the facilities are located in unauthorized states. 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 long-term care of 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 665.0145(10)(10) 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 the long-term care period has been completed in accordance with the approved long-term care plan, the department will notify the owner or operator in writing that the owner or operator is no longer required by this section to maintain financial assurance for long-term care of that unit, unless the department has reason to believe that long-term care has not been in accordance with the approved long-term care plan. The department will provide the owner or operator a detailed written statement of any reason to believe that long-term care has not been in accordance with the approved long-term care plan. NR 665.0145 NoteNote: The department may consider other financial commitments as allowed by s. 289.41 (3) (a) 5., Stats. NR 665.0145 HistoryHistory: CR 05-032: cr. Register July 2006 No. 607, eff. 8-1-06; CR 16-007: am. (5) (a) 2., (10) Register July 2017 No. 739, eff. 8-1-17. NR 665.0146NR 665.0146 Use of a mechanism for financial assurance of both closure and long-term care. An owner or operator may satisfy the requirements for financial assurance for both closure and long-term care for one or more facilities by using a trust fund, surety payment bond, deposit with the department, escrow account, letter of credit, insurance or net worth test that meets the specifications for the mechanism in both ss. NR 665.0143 and 665.0145. 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 financial assurance of closure and of long-term care. NR 665.0146 HistoryHistory: CR 05-032: cr. Register July 2006 No. 607, eff. 8-1-06. NR 665.0147(1)(1) Coverage for sudden accidental occurrences. An owner or operator of a hazardous waste treatment, storage or disposal facility, or a group of 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 specified in par. (a), (b), (c), (d), (e) or (f): NR 665.0147(1)(a)(a) An owner or operator may demonstrate the required liability coverage by having liability insurance as specified in this subsection. NR 665.0147(1)(a)1.1. Each insurance policy shall be amended by attachment of the hazardous waste 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 664.0151 (9). The wording of the certificate of insurance shall be identical to the wording specified in s. NR 664.0151 (10). The owner or operator shall submit a signed duplicate original of the endorsement or the certificate of insurance to the department. If the facilities are located in more than one state, identical evidence of financial assurance shall be submitted to and maintained with the state agency regulating hazardous waste or with the appropriate EPA regional administrator if the facilities are located in unauthorized states. If requested by a regional administrator or the department, the owner or operator shall provide a signed duplicate original of the insurance policy. NR 665.0147(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 665.0147(1)(a)3.3. The department, after conferring with the Wisconsin insurance commissioner, shall determine the acceptability of a surplus lines or captive insurance company to provide coverage for proof of financial responsibility. The department shall ask the insurance commissioner to provide a financial analysis of the insurer including a recommendation as to the insurer’s ability to provide the required coverage. The department may require a periodic review of the acceptability of a surplus lines or captive insurance company. NR 665.0147(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 665.0147(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 665.0147(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 665.0147(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 665.0147(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 subsection, the owner or operator shall specify at least one assurance as “primary” coverage and shall specify other assurance as “excess” coverage. NR 665.0147(1)(g)(g) An owner or operator shall notify the department in writing within 30 days whenever any of the following occur: NR 665.0147(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). NR 665.0147(1)(g)2.2. A Certification of Valid Claim for bodily injury or property damages caused by a sudden or non-sudden accidental occurrence arising from the operation of a hazardous waste treatment, storage or disposal facility is entered between the owner or operator and third-party claimant for liability coverage under pars. (a) to (f). NR 665.0147(1)(g)3.3. A final court order establishing a judgment for bodily injury or property damage caused by a sudden or non-sudden accidental occurrence arising from the operation of a hazardous waste treatment, storage or disposal facility is issued against the owner or operator or an instrument that is providing financial assurance for liability coverage under pars. (a) to (f). NR 665.0147(2)(2) Coverage for nonsudden accidental occurrences. An owner or operator of a surface impoundment or landfill which is used to manage hazardous waste, or a group of facilities, shall demonstrate financial responsibility for bodily injury and property damage to third parties caused by nonsudden accidental occurrences arising from operations of the facility or group of facilities. The owner or operator shall have and maintain liability coverage for nonsudden accidental occurrences in the amount of at least $3 million per occurrence with an annual aggregate of at least $6 million, exclusive of legal defense costs. An owner or operator who shall meet the requirements of this section may combine the required per-occurrence coverage levels for sudden and nonsudden accidental occurrences into a single per-occurrence level, and combine the required annual aggregate coverage levels for sudden and nonsudden accidental occurrences into a single annual aggregate level. Owners or operators who combine coverage levels for sudden and nonsudden accidental occurrences shall maintain liability coverage in the amount of at least $4 million per occurrence and $8 million annual aggregate. This liability coverage may be demonstrated as specified in par. (a), (b), (c), (d), (e) or (f): NR 665.0147(2)(a)(a) An owner or operator may demonstrate the required liability coverage by having liability insurance as specified in this subsection. NR 665.0147(2)(a)1.1. Each insurance policy shall be amended by attachment of the hazardous waste 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 664.0151 (9). The wording of the certificate of insurance shall be identical to the wording specified in s. NR 664.0151 (10). The owner or operator shall submit a signed duplicate original of the endorsement or the certificate of insurance to the department. If the facilities are located in more than one state, identical evidence of financial assurance shall be submitted to and maintained with the state agency regulating hazardous waste or with the appropriate EPA regional administrator if the facilities are located in an unauthorized state. If requested by the department, the owner or operator shall provide a signed duplicate original of the insurance policy. NR 665.0147(2)(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 665.0147(2)(a)3.3. The department, after conferring with the Wisconsin insurance commissioner, shall determine the acceptability of a surplus lines or captive insurance company to provide coverage for proof of financial responsibility. The department shall ask the insurance commissioner to provide a financial analysis of the insurer including a recommendation as to the insurer’s ability to provide the required coverage. The department may require a periodic review of the acceptability of a surplus lines or captive insurance company. NR 665.0147(2)(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 665.0147(2)(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 665.0147(2)(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 665.0147(2)(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 665.0147(2)(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 subsection, the owner or operator shall specify at least one assurance as “primary” coverage and shall specify other assurance as “excess” coverage. NR 665.0147(2)(g)(g) An owner or operator shall notify the department in writing within 30 days whenever any of the following occur: NR 665.0147(2)(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). NR 665.0147(2)(g)2.2. A certification of valid claim for bodily injury or property damages caused by a sudden or non-sudden accidental occurrence arising from the operation of a hazardous waste treatment, storage or disposal facility is entered between the owner or operator and third-party claimant for liability coverage under pars. (a) to (f). NR 665.0147(2)(g)3.3. A final court order establishing a judgment for bodily injury or property damage caused by a sudden or non-sudden accidental occurrence arising from the operation of a hazardous waste treatment, storage or disposal facility is issued against the owner or operator or an instrument that is providing financial assurance for liability coverage under pars. (a) to (f). NR 665.0147(3)(3) Request for variance. If an owner or operator can demonstrate 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, storage or disposal 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, the level to 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. The department may require an owner or operator who requests a variance to provide the technical and engineering information as is deemed necessary by the department to determine a level of financial responsibility other than that required by sub. (1) or (2). The department will process a variance request as if it were a license modification request under s. NR 670.041 (1) (e) and subject to the procedures of s. NR 670.405. Notwithstanding any other provision, the department may hold a public hearing at the department’s discretion or whenever the department finds, on the basis of requests for a public hearing, a significant degree of public interest in a tentative decision to grant a variance. NR 665.0147(4)(4) Adjustments by the department. If the department determines 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, storage or disposal 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 nonsudden accidental occurrences resulting from the operations of a facility that is not a surface impoundment, or landfill, the department may require that an owner or operator of the facility comply with sub. (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 adjustments of level or type of coverage. The department will process an adjustment of the level of required coverage as if it were a license modification under s. NR 670.041 (1) (e) and subject to the procedures of s. NR 670.405. Notwithstanding any other provision, the department may hold a public hearing at the department’s discretion or whenever the department finds, on the basis of requests for a public hearing, a significant degree of public interest in a tentative decision to adjust the level or type of required coverage. NR 665.0147(5)(5) Period of coverage. Within 60 days after receiving certifications from the owner or operator and a qualified professional engineer that final closure has been completed in accordance with the approved closure plan, the department will notify the owner or operator in writing that the owner or operator is no longer required to maintain liability coverage for that facility, unless the department has reason to believe that closure has not been in accordance with the approved closure plan. NR 665.0147(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 subd. 1. or 2.: NR 665.0147(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 665.0147(6)(a)1.c.c. Assets in the United States amounting to either: 1) At least 90 percent of the owner or operator’s total assets. 2) At least 6 times the amount of liability coverage to be demonstrated by this test. NR 665.0147(6)(a)2.a.a. A current rating for the owner 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 665.0147(6)(a)2.c.c. Tangible net worth at least 6 times the amount of liability coverage to be demonstrated by this test. NR 665.0147(6)(a)2.d.d. Assets in the United States amounting to either: 1) At least 90 percent of the owner or operator’s total assets. 2) At least 6 times the amount of liability coverage to be demonstrated by this test. NR 665.0147(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). NR 665.0147(6)(c)(c) To demonstrate that the owner or operator meets this test, the owner or operator shall submit the following 3 items to the department: NR 665.0147(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 665.0147(6)(c)3.3. A special report from the owner’s or operator’s independent certified public accountant to the owner or operator stating all of the following: NR 665.0147(6)(c)3.a.a. The independent certified public accountant has compared the data which the letter from the chief financial officer specifies as having been derived from the independently audited, year-end financial statements for the latest fiscal year with the amounts in the financial statements. NR 665.0147(6)(c)3.b.b. In connection with that procedure, no matters came to the attention of the independent certified public accountant which would provide cause to believe that the specified data should be adjusted. NR 665.0147(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 all 3 items specified in par. (c). NR 665.0147(6)(f)(f) If the owner or operator no longer meets the requirements of 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 665.0147(6)(g)(g) 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 accountant’s report on examination of the owner’s or operator’s financial statements (see 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 665.0147(7)(a)(a) Subject to par. (b), an owner or operator may meet the requirements of this section by obtaining a written guarantee, 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 in subs. (6) (a) to (f). The wording of the guarantee shall be identical to the wording specified in s. NR 664.0151 (8). 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. The guarantee shall remain in force unless the guarantor sends notice of cancellation by certified mail to the owner or operator and to the department. This guarantee may not be terminated unless and until the department approves alternate liability coverage complying with this section. 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 nonsudden 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 the injury or damage, the guarantor will do so up to the limits of coverage. NR 665.0147(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 664.0151 (8), 40 CFR 264.151(h)(2) or other state requirements that are equivalent to 40 CFR 264.151(h)(2) is a legally valid and enforceable obligation in that state: NR 665.0147(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 665.0147(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 665.0147(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 664.0151 (8), 40 CFR 264.151(h)(2) or other state requirements that are equivalent to 40 CFR 264.151(h)(2) is a legally valid and enforceable obligation in that state. NR 665.0147(8)(a)(a) An owner or operator may satisfy the requirements of this section by obtaining an irrevocable letter of credit that conforms to the requirements of this subsection and submitting a copy of the letter of credit to the department. NR 665.0147(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 665.0147(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 665.0147(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 665.0147(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 664.0151 (12), 40 CFR 264.151(l) or other state requirements that are equivalent to 40 CFR 264.151(l) is a legally valid and enforceable obligation in that state:
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