Chapter 289

289.41(1m)(g)3. 3. Within 30 days after the notice under subd. 1. is published, any county, city, village or town, the applicant or any 6 or more persons may file a written request that the hearing under subd. 2. be treated as a contested case, as provided under s. 227.42. A county, city, village or town, the applicant or any 6 or more persons have a right to have the hearing treated as a contested case only if all of the following apply:

289.41(1m)(g)3.a. a. A substantial interest of the person requesting the treatment of the hearing as a contested case is injured in fact or threatened with injury by the department’s action or inaction on the matter.

289.41(1m)(g)3.b. b. The injury to the person requesting the treatment of the hearing as a contested case is different in kind or degree from injury to the general public caused by the department’s action or inaction on the matter.

289.41(1m)(g)3.c. c. There is a dispute of material fact.

289.41(2) (2) Requirement for financial responsibility.

289.41(2)(a) (a) Disposal facilities. The owner or operator of a solid or hazardous waste disposal facility shall maintain proof of financial responsibility ensuring the availability of funds for compliance with the closure and long-term care requirements specified in any rule, order, plan of operation or other plan approval during the period specified in sub. (1m) (b) or under sub. (1m) (f).

289.41(2)(b) (b) Hazardous waste storage and treatment facilities. The owner or operator of a hazardous waste storage or treatment facility shall maintain proof of financial responsibility ensuring the availability of funds for compliance with all closure requirements specified in the plan of operation.

289.41(2)(c) (c) Hazardous waste disposal, storage and treatment facilities. If corrective action is required under s. 291.37, the owner or operator of the hazardous waste facility to which the requirement applies shall maintain proof of financial responsibility ensuring the availability of funds for compliance with the corrective action requirement.

289.41(2)(d) (d) Unlicensed hazardous waste facilities. The owner or operator of an unlicensed hazardous waste facility subject to s. 291.29 shall maintain proof of financial responsibility ensuring the availability of funds for compliance with the approved closure plan and, if applicable, the long-term care plan.

289.41(3) (3) Standard methods of establishing proof of financial responsibility.

289.41(3)(a) (a) Standard methods. The owner or operator of a facility may establish proof of financial responsibility required under sub. (2) (a) to (d) by obtaining any of the following made payable to or established for the benefit of the department and approved by the department:

289.41(3)(a)1. 1. A bond.

289.41(3)(a)2. 2. A deposit.

289.41(3)(a)3. 3. An established escrow account, the assets of which may include the following:

289.41(3)(a)3.a. a. Securities issued by the federal government.

289.41(3)(a)3.b. b. Debt securities issued by a commission, board, agency, or other instrumentality of the federal government that have a rating that is the highest rating category assigned by Standard & Poor’s Corporation, Moody’s Investors Service, or other similar nationally recognized rating agency.

289.41(3)(a)3.c. c. State bonds issued under subch. I of ch. 18.

289.41(3)(a)3.d. d. Corporate bonds that have a rating that is the highest rating category assigned by Standard & Poor’s Corporation, Moody’s Investors Service, or other similar nationally recognized rating agency. Corporate bonds may not be used to provide more than 50 percent of the required amount of proof of financial responsibility.

289.41(3)(a)4. 4. An irrevocable letter of credit.

289.41(3)(a)4m. 4m. An irrevocable trust, the corpus of which may include the following:

289.41(3)(a)4m.a. a. Securities issued by the federal government.

289.41(3)(a)4m.b. b. Debt securities issued by a commission, board, agency, or other instrumentality of the federal government that have a rating that is the highest rating category assigned by Standard & Poor’s Corporation, Moody’s Investors Service, or other similar nationally recognized rating agency.

289.41(3)(a)4m.c. c. State bonds issued under subch. I of ch. 18.

289.41(3)(a)4m.d. d. Corporate bonds that have a rating that is the highest rating category assigned by Standard & Poor’s Corporation, Moody’s Investors Service, or other similar nationally recognized rating agency. Corporate bonds may not be used to provide more than 50 percent of the required amount of proof of financial responsibility.

289.41(3)(a)5. 5. A financial commitment satisfactory to the department to ensure that the owner or operator will comply with the closure and any long-term care requirements specified in the plan of operation or the approved plan under s. 291.29. The department shall consider the request of any owner or operator to establish proof of financial responsibility under this subdivision.

289.41(3)(a)6. 6. If corrective action is required under s. 291.37, a financial commitment satisfactory to the department to ensure that the owner or operator will comply with the requirement. The department shall consider the request of any owner or operator to establish proof of financial responsibility under this subdivision.

289.41(3)(b) (b) Duration of standard methods. The department may approve a standard method of establishing proof of financial responsibility under par. (a) which expires before the termination of the owner’s obligation to provide proof of financial responsibility if the owner or operator shows to a reasonable degree of certainty that the proof of financial responsibility can be renewed or replaced upon expiration and that the owner or operator has an adequate plan to maintain proof of financial responsibility for the closure and long-term care requirements of the plan until termination of the owner’s obligation to provide proof of financial responsibility.

289.41(3)(c) (c) Changes. The owner or operator may change from one standard method of establishing proof of financial responsibility under par. (a) to another standard method under par. (a), to an alternative method under sub. (3m), or to a net worth method of establishing proof of financial responsibility under sub. (4).

289.41(3m) (3m) Alternative method of establishing financial responsibility for solid waste disposal facilities; minimum financial standards for municipalities.

289.41(3m)(a) (a) Alternative method requirements. A municipality may establish proof of financial responsibility for solid waste disposal facilities as required under sub. (2) by applying to the department and meeting the alternative method requirements. The department shall establish by rule the minimum financial requirements for a municipality to establish proof of financial responsibility under this subsection. If a facility is owned or operated by more than one municipality, any such municipality may establish proof of financial responsibility under this subsection on behalf of itself and the other municipalities that are owners or operators. A municipality that seeks to establish proof of financial responsibility under this subsection shall satisfy the minimum financial requirements established by rule and all of the following requirements:

289.41(3m)(a)1. 1. If the municipality has any outstanding, rated, general obligation bonds, none have been rated lower than “Baa” as issued by Moody’s Investors Service or “BBB” as issued by Standard & Poor’s Corporation.

289.41(3m)(a)2. 2. The municipality’s most recent audited annual financial statement shows a ratio of cash plus marketable securities to total expenditures of not less than 0.05, and a ratio of annual debt service to total expenditures of not greater than 0.20.

289.41(3m)(b) (b) Failure to meet alternative method requirements. If at any time the department determines that a municipality does not meet the minimum financial requirements under par. (a) 1. and 2. and established by rule, the municipality shall, within 45 days of the department’s determination, establish proof of financial responsibility using one of the standard methods under sub. (3).

289.41(4) (4) Net worth method of establishing proof of financial responsibility; generally.

289.41(4)(a) (a) Net worth method. A company may establish proof of financial responsibility required under sub. (2) (a), (c) or (d) by applying to the department and meeting the net worth requirements.

289.41(4)(b) (b) Application. A company which seeks to establish proof of financial responsibility utilizing the net worth method shall submit an application to the department as a part of the initial license application, written submissions required under s. 291.37 or annual review procedure which includes a copy of the most recent annual audited financial statements which were distributed to owners, stockholders or other persons with a financial interest in the company and the opinion of an independent certified public accountant.

289.41(4)(c) (c) Opinion of certified public accountant. The opinion of the independent certified public accountant shall include all of the following based upon generally accepted accounting principles:

289.41(4)(c)1. 1. All data and information necessary to determine if the company complies with minimum financial standards under sub. (6) or (7).

289.41(4)(c)2. 2. Statements of any substantive qualifications or reservations the certified public accountant has concerning the financial statements and concerning the ability of the company to meet its obligations.

289.41(4)(c)3. 3. Statements of all material contingent liabilities.

289.41(5) (5) Department determination under net worth method.

289.41(5)(a) (a) Initial determination. Except as provided under par. (b), if the department determines that a company complies with minimum financial standards under sub. (6) and if the department determines that none of the contingent liabilities or other data or information provided in the financial statements or opinion of the certified public accountant disqualifies the company, then the department shall find that the company meets the net worth requirements which constitutes proof of financial responsibility for that year.

289.41(5)(b) (b) Initial determination; public utilities. If the department determines that a public utility complies with minimum financial standards under sub. (7), if the department determines that none of the contingent liabilities or other data or information in the financial statements or opinion of the certified public accountant disqualifies the public utility and if the department determines that the public utility complies with minimum security requirements under sub. (9), then the department shall find that the utility meets the net worth requirements which constitutes proof of financial responsibility for that year.

289.41(5)(c) (c) Adverse determination. If the department determines that contingent liabilities or other data or information provided in the opinion of the certified public accountant disqualifies a company under par. (a) or (b), the department shall issue findings of fact to support this determination and provide the company with an opportunity for a hearing.

289.41(5)(d) (d) Annual review. In order to continue to meet the net worth requirements each year, a company shall reapply under sub. (4) (b) submitting material required under sub. (4) (c). Subsequent determinations by the department shall take into consideration any changes in the plan of operation and adjustments to the estimated total cost of compliance with closure and any long-term care or corrective action requirements because of inflation or other changes.

289.41(5)(e) (e) Special review. If the department has reason to believe that a company no longer meets the net worth requirements, it may require the company to submit information and materials to show compliance at any time.

289.41(5)(f) (f) Failure to meet net worth requirements. If a company does not meet net worth requirements during the annual review or at any special review, the company shall establish proof of financial responsibility utilizing one of the standard methods under sub. (3) within 45 days after the department issues its findings.

289.41(6) (6) Compliance with minimum financial standards under net worth method.

289.41(6)(a) (a) Compliance. Except as provided under par. (j), (k), (L), or (m) or sub. (7), calculations and determinations based on data and information provided in the opinion of the certified public accountant are required to establish that the company satisfies each of the criteria under pars. (b) to (i) in order to comply with minimum financial standards.

289.41(6)(b) (b) Net worth to closure, long-term care and corrective action cost ratio. The net worth of the company at the end of its most recently completed fiscal year equals or exceeds 6 times the estimated total cost of compliance with the closure and any long-term care requirements specified in the plan of operation or the approved plan under s. 291.29 plus the costs of any corrective action required under s. 291.37.

289.41(6)(c) (c) Minimum net worth. The net worth of a company at the end of its most recently completed fiscal year equals or exceeds $10,000,000.

289.41(6)(d) (d) Net fixed assets to total assets ratio. The quotient of the net fixed assets divided by total tangible assets at the end of the company’s most recently completed fiscal year exceeds 0.3.

289.41(6)(e) (e) Working capital to total liabilities ratio. The quotient of the working capital provided from operations divided by total liabilities at the end of the company’s most recently completed fiscal year exceeds 0.1.

289.41(6)(f) (f) Total liabilities to net worth ratio. The quotient of the total liabilities divided by net worth at the end of the company’s most recently completed fiscal year is less than 1.5.

289.41(6)(g) (g) Credit worthiness. The quotient of the total of the working capital provided from operations at the end of the company’s most recently completed fiscal year plus interest payments made during that year plus rental expenses incurred during that year, used as a dividend, divided by the total of interest payments made during that year plus rental expenses incurred during that year plus the product of the sinking fund at the end of that year times the tax factor, used as the divisor, exceeds 2.0. The tax factor equals the quotient of one, used as the dividend, divided by the total of one less the sum of the average federal income tax rate plus the average Wisconsin tax rate calculated in that year, used as the divisor.

289.41(6)(h) (h) Average self-financing measure. The average for the self-financing measures for the company’s 5 previous fiscal years exceeds 0.8. The self-financing measure equals the quotient of the working capital provided from operations at the end of the company’s fiscal year less dividend payments made during that year, used as the dividend, divided by the capital expenditures made during that year, used as the divisor.

289.41(6)(i) (i) Absence of qualifiers in certified public accountant’s opinion. Information provided in the opinion of the certified public accountant does not indicate any of the following qualifications:

289.41(6)(i)1. 1. Accounting practices or calculations made by or suspected to have been made by the company in its financial statements which deviate from generally accepted accounting principles.

289.41(6)(i)2. 2. Any limitation on the scope of the audit procedures.

289.41(6)(i)3. 3. Any indication that materials presented in or calculations made in the financial statement are unreliable because of future events not susceptible to reasonable estimation.

289.41(6)(j) (j) Variance from one criterion. If calculations and determinations based on data and information provided in the opinion of the certified public accountant establish that the company satisfies both the criteria under pars. (b) and (c) and all but one of the criteria under pars. (d) to (i) and if the department finds that the company meets minimum variance requirements, the department may grant a variance and issue a determination stating that the company complies with minimum financial standards. In order to meet minimum variance requirements:

289.41(6)(j)1. 1. The deviation from the criterion may not be significant;

289.41(6)(j)2. 2. The company is required to have satisfied the criterion consistently in previous fiscal years; and

289.41(6)(j)3. 3. The company is required to establish that it is likely to satisfy the criterion in future fiscal years.

289.41(6)(k) (k) Exception from one criterion. Paragraph (e) does not apply to a company that owns a solid waste facility at which more than one-half, by volume, of the solid waste disposed of is high-volume industrial waste if the company satisfies the criteria under pars. (b) to (d) and (f) to (i).

289.41(6)(L) (L) Alternative criteria for certain companies. Paragraphs (e) and (f) do not apply to a company that owns a solid waste facility at which more than one-half, by volume, of the solid waste disposed of is high-volume industrial waste if the company satisfies the criteria under pars. (b) to (d) and (g) to (i) and one of the following criteria:

289.41(6)(L)1. 1. The company received a rating for its senior unsubordinated debt of “AAA,” “AA,” “A,” or “BBB” from Standard and Poor’s Corporation, or of “Aaa,” “Aa,” “A,” or “Baa” from Moody’s Investor Service, Incorporated, in the most recent issuance of ratings by either firm.

289.41(6)(L)2. 2. The quotient of the sum of net income plus depreciation, plus depletion, plus amortization, minus $10,000,000, divided by total liabilities at the end of the company’s most recently completed fiscal year exceeds 0.1.

289.41(6)(m) (m) Alternative criteria for waste wood facility. Paragraph (d) does not apply to a company that owns a solid waste facility that processes waste wood if more than 50 percent, by volume, of the waste wood is processed to be used for energy recovery and the company satisfies the criteria under pars. (b), (c), and (e) to (i), and the following criteria:

289.41(6)(m)1. 1. The quotient of short-term assets divided by short-term liabilities at the end of the company’s most recent fiscal year equals or exceeds 4.0.

289.41(6)(m)2. 2. The quotient of the sum of net income plus interest expense, plus depreciation, plus amortization, less capital expenditures, less dividends for the company’s most recently completed fiscal year divided by the sum of interest expenses and mandatory payments on funded debt for that year equals or exceeds 4.0.

289.41(7) (7) Compliance with minimum financial standards under net worth method; public utilities.

289.41(7)(a) (a) Compliance. A public utility is required to satisfy both the criteria under pars. (b) and (c) in order to comply with minimum financial standards.

289.41(7)(b) (b) Net worth to closure, long-term care and corrective action costs ratio; minimum net worth; and absence of qualifiers in certified public accountant’s opinion. Calculations and determinations based on data and information provided in the opinion of the certified public accountant are required to establish that the utility satisfies each of the criteria under sub. (6) (b), (c) and (i); and

289.41(7)(c) (c) Minimum bond ratings. The public utility received a bond rating of “A” or better from the Moody’s investor service, incorporated, or “A” or better from Standard and Poor’s corporation in the most recent issuance of ratings by either firm.

289.41(9) (9) Minimum security requirements under net worth method; public utilities; assessment order.

289.41(9)(a) (a) Minimum risk pool. A public utility may comply with minimum security requirements under a risk pool arrangement if at least 2 public utilities utilize this arrangement.

289.41(9)(b) (b) Inability to meet closure and long-term care or corrective action costs. If a public utility which utilizes the risk pool arrangement does not comply with the closure and long-term care requirements specified in any plan of operation or approved plan under s. 291.29 or with any corrective action required under s. 291.37 and if the department or the department of justice is unable to obtain compliance with these requirements after appropriate legal action because of bankruptcy, insolvency or the financial inability of the utility to comply with these requirements, then the department is authorized to enter an assessment order.

289.41(9)(c) (c) Assessment order. If the department is authorized to enter an assessment order, the order shall direct each public utility which utilized the risk pool arrangement in the previous year, except the utility which failed to comply with the closure and long-term care or corrective action requirements, to pay a share of the estimated total cost of compliance with these requirements proportional to the amount of electricity generated by each of these public utilities during the previous year.

289.41(10) (10) Sale of facility. A person acquiring ownership, possession or operation of a solid or hazardous waste facility shall establish proof of financial responsibility as required under sub. (2). The previous owner or operator is responsible and shall maintain any required proof of financial responsibility until the person acquiring ownership, possession or operation of the facility establishes any required proof of financial responsibility.

289.41(11) (11) Closure, long-term care and corrective action.

289.41(11)(a) (a) Failure to comply with closure and long-term care requirements. If the owner or operator of the facility fails to comply with the closure and any long-term care requirements in any plan of operation or approved plan under s. 291.29:

289.41(11)(a)1. 1. The department may require the forfeiture or convert any standard method of establishing proof of financial responsibility if the owner or operator established proof of financial responsibility under sub. (3). All moneys received from the forfeiture or conversion of any standard method of establishing proof of financial responsibility shall be credited to the waste management fund.

289.41(11)(a)3. 3. The department may issue an assessment order under sub. (9) (c) if the owner or operator established proof of financial responsibility by complying with minimum financial standards under sub. (7) and minimum security requirements under sub. (9). All moneys received from the assessment order shall be credited to the waste management fund.

289.41(11)(a)4. 4. The department may request the department of justice to initiate court action against the owner or operator to recover moneys sufficient to pay the cost of complying with the closure and long-term care requirements specified in any rule, order, plan of operation, or other plan approval or approved plan under s. 291.29. Any moneys recovered in this type of action or as a settlement in anticipation of this type of action shall be credited to the waste management fund.

289.41(11)(am) (am) Failure to comply with corrective action requirements. If the owner or operator of the facility fails to comply with any corrective action requirements under s. 291.37:

289.41(11)(am)1. 1. The department may require the forfeiture or convert any standard method of establishing proof of financial responsibility if the owner or operator established proof of financial responsibility under sub. (3). All moneys received from the forfeiture or conversion of any standard method of establishing proof of financial responsibility shall be credited to the waste management fund.

289.41(11)(am)3. 3. The department may issue an assessment order under sub. (9) (c) if the owner or operator established proof of financial responsibility by complying with minimum financial standards under sub. (7) and minimum security requirements under sub. (9). All moneys received from the assessment order shall be credited to the waste management fund.

289.41(11)(am)4. 4. The department may request the department of justice to initiate court action against the owner or operator to recover moneys sufficient to pay the cost of complying with a corrective action required under s. 291.37. Any moneys recovered in this type of action or as a settlement in anticipation of this type of action shall be credited to the waste management fund.