Chapter NR 665

NR 665.0145 Note Note: The department may consider other financial commitments as allowed by s. 289.41 (3) (a) 5., Stats.

NR 665.0145 History History: 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 665.0146 NR 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 History History: CR 05-032: cr. Register July 2006 No. 607, eff. 8-1-06.

NR 665.0147 NR 665.0147 Liability requirements.

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) (6) Financial test for liability coverage.

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. 1. The owner or operator shall have all of the following:

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.b. b. Tangible net worth of at least $10 million.

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. 2. The owner or operator shall have all of the following:

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.b. b. Tangible net worth of at least $10 million.

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)1. 1. A letter signed by the owner’s or operator’s chief financial officer and worded as specified in s. NR 664.0151 (7).

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) (7) Guarantee for liability coverage.

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) (b)

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)1.a. a. The state in which the guarantor is incorporated.

NR 665.0147(7)(b)1.b. b. Each state in which a facility covered by the guarantee is located.

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) (8) Letter of credit for liability coverage.

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(8)(c) (c) The wording of the letter of credit shall be identical to the wording specified in s. NR 664.0151 (11).

NR 665.0147(9) (9) Surety bond for liability coverage.

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)(c) (c) The wording of the surety bond shall be identical to the wording specified in s. NR 664.0151 (12).

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:

NR 665.0147(9)(d)1. 1. The state in which the surety is incorporated.

NR 665.0147(9)(d)2. 2. Each state in which a facility covered by the surety bond is located.

NR 665.0147(10) (10) Trust fund for liability coverage.

NR 665.0147(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 665.0147(10)(b) (b) 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 665.0147(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 purposes of this subsection, “the full amount of the liability coverage to be provided” means the amount of coverage for sudden or nonsudden 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 665.0147(10)(d) (d) The wording of the trust fund shall be identical to the wording specified in s. NR 664.0151 (13).

NR 665.0147 History History: CR 05-032: cr. Register July 2006 No. 607, eff. 8-1-06; CR 16-007: am. (5) Register July 2017 No. 739, eff. 8-1-17.

NR 665.0148 NR 665.0148 Incapacity of owners or operators, guarantors or financial institutions.

NR 665.0148(1) (1) An owner or operator shall notify the department by certified mail of the commencement of a voluntary or involuntary bankruptcy proceeding under 11 USC, naming the owner or operator as debtor, within 10 days after commencement of the proceeding.

NR 665.0148(2) (2) An owner or operator who fulfills the requirements of s. NR 665.0143, 665.0145 or 665.0147 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 the instruments. The owner or operator shall establish other financial assurance or liability coverage within 60 days after such an event.

NR 665.0148 History History: CR 05-032: cr. Register July 2006 No. 607, eff. 8-1-06.

subch. I of ch. NR 665 Subchapter I — Containers

NR 665.0170 NR 665.0170 Applicability. This subchapter applies to owners and operators of all hazardous waste facilities that store containers of hazardous waste, except as s. NR 665.0001 provides otherwise.