NR 520.04(7)(7)Compliance inspection fees for exempt non-landfill facilities. Compliance inspection fees as required under ss. NR 502.05 (3) (k) 8. and 502.07 (2r) (g) shall be paid to the department by the applicant in the amount specified in ch. NR 520, Table 2.
NR 520.05NR 520.05Financial responsibility for closure, long-term care and remedial actions.
NR 520.05(1)(1)Owner’s responsibility. The owner of any landfill is responsible for its closure, for any remedial actions required by the department, and for its perpetual long-term care. Owners of landfills or other solid waste facilities shall provide proof of financial responsibility as determined by Table 1 and the remainder of this chapter. Those facilities required to provide proof of financial responsibility shall submit the proof as part of their operating license and annually thereafter for the period of active facility life, or longer where required, to ensure compliance with closure, long-term care or remedial actions.
Table 1 Proof of Owner Financial Responsibility
NR 520.05(2)(2)Successors in interest. Any person acquiring rights of ownership, possession or operation of a licensed facility shall be subject to all requirements of the license for the facility and shall provide any required proof of financial responsibility to the department in accordance with this section. The previous owner shall maintain proof of financial responsibility until the person acquiring ownership, possession or operation of the facility obtains department approval of proof of financial responsibility.
NR 520.06NR 520.06Methods of providing proof of financial responsibility.Financial assurances for closure, long-term care and remedial actions where required, shall be established separately. The owner shall specify, as part of the plan of operation submittal, which method of providing proof of financial responsibility will be used for closure and for long-term care. To provide proof of financial responsibility, the applicant shall use only one of the following methods for each account:
NR 520.06(1)(a)(a) If the owner chooses to submit a bond, it shall be in the amount determined according to s. NR 520.08 (1) (b), (2) (b) or (3) (b), if required, conditioned upon faithful performance by the owner and any successor in interest, of all closure or long-term care requirements of the approved plan of operation or subsequent remedial actions required by the department. Bonds for closure or long-term care shall be delivered to the department as part of the initial operating license application. All bonds shall be established using forms supplied by the department.
NR 520.06(1)(b)(b) Bonds shall be issued by a surety company among those listed as acceptable sureties for federal bonds in Circular 570 of the U.S. department of the treasury. At the option of the owner, a performance bond or a forfeiture bond may be filed. The department shall be the obligee of the bond. Surety companies may have the opportunity to complete the closure or long-term care of the facility in lieu of cash payment to the department if the owner or any successor in interest fails to carry out the closure or long-term care requirements of the approved plan of operation. The department shall mail notification of its intent to use the funds for that purpose to the last known address of the owner. If the owner submits a written request for a hearing to the secretary of the department within 20 days after the mailing of the notification, the department shall, prior to using the funds, hold a hearing for the purpose of determining whether or not the closure or long-term care requirements of the approved plan of operation have been carried out.
NR 520.06 NoteNote: Copies of Circular 570, “Companies Holding Certificates of Authority as Acceptable Sureties on Federal Bonds and as Acceptable Reinsuring Companies” can be obtained from surety bond branch, financial management service, department of the treasury, Washington D.C. 20227, phone (202) 874-6850. Copies are available for inspection at the offices of the department of natural resources, the secretary of state, and the legislative reference bureau.
NR 520.06(1)(c)(c) Each bond shall provide that, as long as any obligation of the owner for closure or long-term care remains, the bond may not be canceled by the surety, unless a replacement bond or other proof of financial responsibility under this section is provided to the department by the owner. If the surety proposes to cancel such a bond, the surety shall provide notice to the department and to the owner in writing by registered or certified mail not less than 90 days prior to the proposed cancellation date. Not less than 30 days prior to the expiration of the 90-day notice period, the owner shall deliver to the department a replacement bond or other proof of financial responsibility under this section, in the absence of which all disposal operations shall immediately cease and the bond shall remain in effect as long as any obligation of the owner remains for closure or long-term care. The surety may discharge its obligation under the bond at anytime by paying the unused portion of the bond to the department.
NR 520.06(1)(d)(d) If the surety company becomes bankrupt or insolvent or if its authorization to do business is revoked or suspended, the owner shall, within 30 days after receiving written notice, deliver to the department a replacement bond or other proof of financial responsibility under this section, in the absence of which all disposal operations shall immediately cease and the bond shall remain in effect as long as any obligation of the owner remains for closure or long-term care.
NR 520.06(2)(2)Deposit with the department. If the owner chooses to deposit cash, certificates of deposit or U.S. government securities with the department, the amount of the deposit shall be determined according to s. NR 520.08 (1) (a), (2) (a) or (3) (a), if required, and deposits for closure or long-term care shall be submitted as part of the initial license application. Cash deposits placed with the department shall be segregated and invested in an interest bearing account. All interest payments shall be accumulated in the account. The department shall have the right to use part or all of the funds to carry out the closure or long-term care requirements of the approved plan of operation if the owner fails to do so. The department shall mail notification of its intent to use funds for that purpose to the last known address of the owner. If the owner submits a written request for a hearing to the secretary of the department within 20 days after the mailing of notification, the department shall, prior to using the funds, hold a hearing for the purpose of determining whether or not the closure or long-term care requirements of the approved plan of operation have been carried out.
NR 520.06(3)(3)Escrow account. If the owner establishes an escrow account, the amount shall be determined according to s. NR 520.08 (1) (a), (2) (a) or (3) (a), if required, and the account shall be with a bank or financial institution located within the state of Wisconsin which is examined and regulated by the state or a federal agency. The assets in the escrow account shall consist of cash, certificates of deposit, or U.S. government securities. A total of no more than $100,000 in cash and certificates of deposit may be placed into escrow accounts or trust accounts established by the owner in the same bank or financial institution for the purposes of providing financial assurance to the department. U.S. government securities shall be used in these escrow or trust accounts for amounts in excess of $100,000. All interest or coupon payments shall accumulate in the account. A duplicate original of the escrow agreement for closure or long-term care, with original signatures shall be submitted to the department as part of the initial operating license application. Escrow account forms shall be supplied by the department. The department shall be a party to the escrow agreement, which shall provide that there shall be no withdrawals from the escrow account except as authorized in writing by the department. The escrow agreement shall further provide that the department shall have the right to withdraw and use part or all of the funds in the escrow account to carry out the closure or long-term care requirements of the approved plan of operation if the owner fails to do so. The department shall mail notification of its intent to use funds for that purpose to the last known address of the owner. If the owner submits a written request for a hearing to the secretary of the department within 20 days after the mailing of the notification, the department shall, prior to using the funds, hold a hearing for the purpose of determining whether or not the closure or long-term care requirements of the approved plan of operation have been carried out.
NR 520.06(4)(4)Irrevocable trust. If the owner creates an irrevocable trust, it shall be exclusively for the purpose of ensuring that the owner or any successor in interest will comply with the closure or long-term care requirements of the approved plan of operation. The trust agreement shall designate the department as sole beneficiary. The trustee shall be a bank or other financial institution located within the state of Wisconsin which has the authority to act as a trustee and whose trust operations are regulated and examined by the state or a federal agency. The trust corpus shall consist of cash, certificates of deposit, or U.S. government securities in the amount determined according to s. NR 520.08 (1) (a), (2) (a) or (3) (a), if required. A total of no more than $100,000 in cash and certificates of deposit may be placed into escrow accounts or trust accounts established by the owner in the same bank or financial institution for the purposes of providing financial assurance to the department. U.S. government securities shall be used in these escrow or trust accounts for amounts in excess of $100,000. All interest or coupon payments shall accumulate in the account. A duplicate original of the trust agreement for closure or long-term care, with original signatures shallbe submitted to the department for approval as part of the initial operating license application. Trust forms shall be supplied by the department. The trust agreement shall provide that there shall be no withdrawal from the trust fund except as authorized in writing by the department. The trust agreement shall further provide that sufficient monies shall be paid from the trust fund to the beneficiary in the event that the owner or any successor in interest fails to complete the closure or long-term care requirements of the approved plan of operation. The department shall mail notification of its intent to use funds for that purpose to the last known address of the owner. If the owner submits a written request for a hearing to the secretary of the department within 20 days after the mailing of the notification, the department shall, prior to using the funds, hold a hearing for the purpose of determining whether or not the closure or long-term care requirements of the approved plan of operation have been carried out.
NR 520.06(5)(a)(a) If the owner chooses to submit a letter of credit, it shall be in the amount determined according to s. NR 520.08 (1) (b), (2) (b) or (3) (b), if required, and available exclusively for the purpose of assuring that all closure or long-term care requirements of the approved plan of operation will be complied with. The original letter of credit for closure or long-term care shall be delivered to the department as part of the initial operating license application. Letter of credit forms shall be supplied by the department.
NR 520.06(5)(b)(b) Letters of credit shall be issued by a bank or financial institution which has the authority to issue letters of credit and whose letter of credit operations are examined and regulated by a federal agency, or in the case of a bank or financial institution located within the state of Wisconsin, which is examined and regulated by the state or a federal agency. The department shall be the beneficiary of the letter of credit.
NR 520.06(5)(c)(c) The letter of credit shall provide either that the unused portion of the letter of credit shall be payable in full to the department upon the expiration of the letter of credit or that as long as any obligation of the owner for closure or long-term care remains, the letter of credit may not be canceled by the bank or financial institution, unless a replacement letter of credit or other proof of financial responsibility under this section is provided to the department by the owner. If the bank or financial institution proposes to cancel a letter of credit, the bank or financial institution shall provide notice to the department and the owner in writing by registered or certified mail not less than 90 days prior to the proposed cancellation date. Not less than 30 days prior to the expiration date of the 90-day notice period, the owner shall deliver to the department a replacement letter of credit or other proof of financial responsibility under this section, in the absence of which all disposal operations shall immediately cease and either the letter of credit shall remain in effect as long as any obligation of the owner remains for closure or long-term care or the unused portion of the letter of credit shall be payable in full to the department.
NR 520.06(5)(d)(d) If the bank or financial institution becomes bankrupt or insolvent or if its authorization to do business is revoked or suspended, the owner shall, within 30 days after receiving written notice, deliver to the department a replacement letter of credit or other proof of financial responsibility under this section, in the absence of which all disposal operations shall immediately cease and the letter of credit shall either remain in effect as long as any obligation of the owner remains for closure or long-term care or be payable in full to the department.
NR 520.06(5)(e)(e) The letter of credit shall further provide that the department has the right to withdraw and use part or all of the funds to carry out the closure or long-term care requirements of the plan of operation if the owner fails to do so. The department shall mail notification of its intent to use the funds for that purpose to the last known address of the owner. If the owner submits a written request for a hearing to the secretary of the department, within 20 days after the mailing of the notification, the department shall, prior to using the funds, hold a hearing for the purpose of determining whether or not the closure or long-term care requirements of the approved plan of operation have been carried out.
NR 520.06(6)(a)(a) Only a company that meets the definition in s. 289.41 (1) (b), Stats., may use the net worth method of providing proof of financial responsibility.
NR 520.06(6)(b)(b) The company shall comply with the net worth test requirements of s. 289.41 (4) and (6) or (7), Stats., and the minimum security requirements of s. 289.41 (9), Stats., whichever is applicable.
NR 520.06(6)(c)(c) A company using the net worth test to provide proof of financial responsibility for more than one facility shall use the total cost of compliance for all facilities in determining the net worth to closure and long-term care cost ratio.
NR 520.06(6)(d)(d) The department determinations under the net worth test shall be done in accordance with s. 289.41 (5), Stats.
NR 520.06(7)(a)(a) If the owner chooses to submit an insurance policy for closure or long-term care, it shall be issued for the maximum risk limit determined according to s. NR 520.08 (1) (b), (2) (b) or (3) (b), if required. A certificate of insurance for closure or long-term care shall be delivered to the department as part of the initial operating license application. Certificate of insurance forms shall be supplied by the department.
NR 520.06(7)(b)(b) Except for captive insurance companies, the insurer shall be licensed to transact the business of insurance or eligible to provide insurance as an excess or surplus lines insurer in one or more states. 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 shall be the beneficiary of the insurance policy. The department may require a periodic review of the acceptability of a surplus lines or captive insurance company.
NR 520.06(7)(c)(c) The insurance policy shall provide either that the unused proceeds of the policy shall be payable in full to the department upon expiration of the policy or that, as long as any obligation of the owner for closure or long-term care remains, the insurance policy may not be canceled by the insurer unless a replacement insurance policy or other proof of financial responsibility under this section is provided to the department by the owner. If the insurer proposes to cancel an insurance policy, the insurer shall provide notice to the department and to the owner in writing by registered or certified mail not less than 90 days prior to the proposed cancellation date. Not less than 30 days prior to the expiration of the 90-day notice period, the owner shall deliver to the department a replacement insurance policy or other proof of financial responsibility under this section, in the absence of which all disposal operations shall immediately cease and either the policy shall remain in effect as long as any obligation of the owner remains for closure or long-term care or the proceeds of the policy shall be payable in full to the department.
NR 520.06(7)(d)(d) If the insurance company becomes bankrupt or insolvent or if the company receives an unfavorable evaluation under s. 618.41 (6) (d), Stats., the owner shall, within 30 days after receiving written notice, deliver to the department a replacement insurance policy or other proof of financial responsibility under this section in the absence of which all disposal operations shall immediately cease and the policy shall either remain in effect as long as any obligation of the owner remains for closure or long-term care or be payable in full to the department.
NR 520.06(7)(e)(e) The insurance policy shall further provide that funds, up to an amount equal to the maximum risk limit of the policy, will be available to the department to carry out the closure and long-term care requirements of the approved plan of operation if the owner fails to do so. The department shall mail notification of its intent to use the funds for that purpose to the last known address of the owner. If the insurer or owner submits a written request for a hearing to the secretary of the department within 20 days after the mailing of the notification, the department shall, prior to using funds, hold a hearing for the purpose of determining whether or not the closure or long-term care requirements of the approved plan of operation have been carried out.
NR 520.06(7)(f)(f) Each insurance policy shall contain a provision allowing assignment of the policy to a successor owner or operator. Assignment may be conditioned upon the consent of the insurer, provided consent is not unreasonably refused.
NR 520.06 NoteNote: These forms may be obtained from the Department of Natural Resources, Bureau of Waste Management, P.O. Box 7921, Madison, WI 53707 or any DNR region office.
NR 520.06(8)(8)Other methods. The department shall consider other financial commitments made payable to or established for the benefit of the department to ensure the owner or operator will comply with the closure and long-term care requirements of the approved plan of operation. The department shall review the request of any owner or operator to establish proof of financial responsibility to determine whether the proposed method provides a degree of assurance that is comparable to that provided by the methods listed in this section. The owner shall submit the request and all supporting information as part of the plan of operation.
NR 520.07(1)(1)General. For the purpose of determining the amount of proof of financial responsibility that is required in s. NR 520.06, the owner shall estimate the total cost in current dollars of closure for the point in time during operation of the facility when the extent and manner of its operation make closure most expensive, estimate the annual cost in current dollars for each year of the long-term care proof of owner responsibility period for the facility and submit the estimated closure and long-term care costs together with all necessary justification to the department for approval as part of the plan of operation submittal. The costs shall be based on a third party performing the work and reported on a per unit basis. The source of estimates shall be indicated.
NR 520.07(1m)(1m)Adjustments. The owner shall prepare and submit to the department a new cost estimate for closure and long-term care during the active life of the facility as follows:
NR 520.07(1m)(a)(a) Once every 10 years using current dollars, unless the costs are revised within the 10 year period as required under par. (b); and
NR 520.07(1m)(b)(b) Due to a change in site design or operation or both approved by the department in writing.
NR 520.07(2)(2)Closure costs for landfills. At a minimum, closure costs for a landfill shall include all of the following:
NR 520.07(2)(a)(a) The purchasing, hauling, placement, and documentation testing of all the final cover materials including soils, membranes, fabrics, and grids and topsoil.
NR 520.07(2)(b)(b) Seeding, fertilizing, mulching, and labor.
NR 520.07(2)(c)(c) The installation of gas removal and treatment devices.
NR 520.07(2)(d)(d) The cost of preparing an engineering report documenting the work performed.
NR 520.07(2m)(2m)Closure costs for non-landfill facilities required to provide proof of financial responsibility.
NR 520.07(2m)(a)(a) At a minimum, closure costs for a facility required to provide proof of financial responsibility under s. NR 502.04 (6) shall include all of the following:
NR 520.07(2m)(a)1.1. Work to remove entire remaining inventory including equipment and materials, recycling or disposal costs, transportation, labor, supervision, overhead costs, and taxes.
NR 520.07(2m)(b)(b) Cost estimates under par. (a) shall be based on the maximum volumes approved to be on-site, including material stored before and after processing and material undergoing processing or on sort lines.
NR 520.07(3)(3)Long-term care costs. At a minimum, long-term care costs shall include, where applicable, land surface care; gas removal, treatment and monitoring; unsaturated zone monitoring; leachate pumping, transportation, monitoring and treatment; groundwater monitoring including sample collection and analysis; leachate collection line cleaning on an annual basis; annual cost of electricity for maintaining the closed site; and a 10% contingency. For the purposes of preparing the long-term care cost estimates, all monitoring requirements specified in the plan of operation shall be assumed to apply over the entire long-term care period. Leachate quantity and strength shall be assumed to remain constant over time and the calculation of leachate generation volumes shall be performed assuming that the waste is at field capacity unless an alternative method is approved by the department in writing. Only detailed performance data will be considered when evaluating estimates for leachate strengths and leachate generation volumes. Leachate treatment costs shall be based on those available from a municipal wastewater treatment plant capable of accepting the leachate in accordance with the applicable requirements of its WPDES permit. The expected operatinglife of all pumps, manholes, blowers,extraction wells and other engineering design features shall be specified in the plan of operation. As each of these features reach the end of their anticipated operating life, the cost of their replacement shall be added to the estimate for the appropriate year of the long-term care proof period.
NR 520.07(4)(4)Remedial action costs. When remedial actions are required by the department, the owner of any municipal solid waste landfill identified in Table 1 as subject to remedial action proof of financial responsibility requirements shall submit cost estimates to the department for performing all activities associated with the required remedial action. The costs shall be provided in current dollars based on a third party performing the work. They shall also be reported on a per unit basis and shall include the source of the estimates. In addition, the length of time necessary to complete the remedial action shall be estimated and the cost of remedial actions for each year shall be presented.
NR 520.07(5)(5)Inflation rate. The rates of inflation applied to cost estimates approved by the department in previous years shall be the annual gross domestic product implicit price deflator published in the survey of current business by the bureau of economic analysis, U.S. department of commerce for the appropriate years. The projected rate of inflation to be applied in proof of financial responsibility calculations for all future years shall be equal to the annual gross domestic product implicit price deflator for the last full calendar year.
NR 520.08NR 520.08Calculating the amount of the proof of financial responsibility.The owner shall, as part of the plan of operation submittal, calculate the necessary amounts of proof of financial responsibility for both closure and long-term care based on the chosen methods of providing proof of financial responsibility.
NR 520.08(1)(a)(a) For escrow, trust or department accounts, proof of financial responsibility for closure shall be equal to the estimated cost of closure in current dollars multiplied by the quantity of one plus the projected annual rate of inflation expressed as a decimal, and divided by the quantity of one plus the weighted average annual rate of return of the investments in the account expressed as a decimal.
NR 520.08(1)(b)(b) For bonds, letters of credit and insurance, proof of financial responsibility for closure shall be equal to the estimated cost of closure in current dollars multiplied by the quantity of one plus the projected annual rate of inflation expressed as a decimal.
NR 520.08(2)(a)(a) For escrow, trust or department accounts, proof of financial responsibility for long-term care shall be provided in accordance with the following:
NR 520.08(2)(a)1.1. Annual payments shall be made into the account at the beginning of each year of site life. All estimated annual expenditures during the long-term care proof of financial responsibility period shall be assumed to occur at the end of each year of the proof period.
NR 520.08(2)(a)2.2. Annual payments shall be made in equal dollar amounts or in dollar amounts that increase each year by no more than the projected rate of inflation. However, payments in excess of these minimum amounts may be made in any year, thereby reducing the amounts of subsequent annual payments for the remainder of the site life.
NR 520.08(2)(a)3.3. The amount of the annual payments shall be calculated and made such that, at the end of the projected facility life, the minimum dollar value of the account is equal to the sum of all estimated long-term care expenditures for the entire long-term care proof of financial responsibility period where the expenditure for each year has first been expressed in future dollars and then brought to present value using a discount rate equal to the projected rate of inflation plus 2%.
NR 520.08(2)(a)4.4. In estimating future earnings on these accounts, the weighted average rate of return of the investments held in the account may be used for a period of time not to exceed the weighted average maturity of the investments held in the account rounded to the nearest whole year. Earnings for years beyond the weighted average maturity of the investments in the account shall be calculated based on a projected rate of return equal to the projected rate of inflation plus 2%.
NR 520.08(2)(a)5.5. If an annual payment is missed or made late, the subsequent annual payment shall be increased so that the end of year balances originally calculated based on beginning of year payments are maintained.
NR 520.08(2)(b)(b) For bonds, letters of credit or insurance, proof of financial responsibility for long-term care shall be equal to the sum of the costs in current dollars of performing each of the years of long-term care for the required long-term care proof of financial responsibility period.
NR 520.08(3)(a)(a) For escrow, trust or department accounts, proof of financial responsibility for remedial actions shall be provided in accordance with the following:
NR 520.08(3)(a)1.1. Annual payments shall be made into the account at the beginning of each year of the first half of the remedial action period. All estimated annual expenditures during the remedial action proof of financial responsibility period shall be assumed to occur at the end of each year of the proof period.
NR 520.08(3)(a)2.2. Annual payments shall be made in equal dollar amounts or in dollar amounts that increase each year by no more than the projected rate of inflation. However, payments in excess of these minimum amounts may be made in any year, thereby reducing the amounts of subsequent payments.
NR 520.08(3)(a)3.3. The amount of these payments shall be calculated and made such that, half way through the period of time the remedial action is estimated to take to complete, the minimum dollar value of the account is equal to the sum of each annual cost which is estimated to occur in the second half of the remedial action period where the expenditure for each year has first been expressed in future dollars and then brought to present value using a discount rate equal to the projected rate of inflation plus 2%.
NR 520.08(3)(a)4.4. Determination of earnings and procedures to follow in the case of missed or late payments shall be in accordance with sub. (2) (a) 2. and 3.
NR 520.08(3)(b)(b) For bonds or letters of credit, remedial action proof of financial responsibility shall be provided in an amount equal to the sum of the remedial action costs estimated to occur in the second half of the remedial action period expressed in current dollars.
NR 520.09NR 520.09Changing methods of proof of financial responsibility.The owner of a solid waste land disposal facility may change from one method of providing proof of financial responsibility under s. NR 520.06 to another, but not more than once per year. A change may only be made on the anniversary of the submittal of the original method of providing proof of financial responsibility. The amount of the new method of providing proof of financial responsibility shall be in the amount that is equal to the amount that would have accumulated had the new method been used as the original method.
NR 520.10NR 520.10Adjustment of financial responsibility.The owner of a facility identified in Table 1 as being required to establish proof of financial responsibility shall submit to the department proof of the adjustment of the amounts of the proof mechanisms for closure, long-term care and remediation. Proof mechanisms shall be adjusted as follows:
NR 520.10(1)(1)All proof mechanisms shall be adjusted annually to account for increases in cost estimates based on adjustments for inflation. The annual proof mechanism adjustments shall be submitted to the department by December 31.
Published under s. 35.93, Stats. Updated on the first day of each month. Entire code is always current. The Register date on each page is the date the chapter was last published.
