Chapter NR 665

NR 665.0121(2) (2) 

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

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

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

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

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

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

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

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

NR 665.0140 NR 665.0140 Applicability.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

NR 665.0142 NR 665.0142 Cost estimate for closure.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

NR 665.0143(1)(c)2. 2. Subsequent payments shall be made no later than 30 days after each anniversary date of the first payment. The amount of each subsequent payment shall be determined by this formula:

-

=

where CE is the current closure cost estimate, CV is the current value of the trust fund and Y is the number of years remaining in the pay-in period.

NR 665.0143(1)(d) (d) The owner or operator may accelerate payments into the trust fund or may deposit the full amount of the current closure cost estimate at the time the fund is established. However, the owner or operator shall maintain the value of the fund at no less than the value that the fund would have if annual payments were made as specified in par. (c).

NR 665.0143(1)(e) (e) If the owner or operator establishes a closure trust fund after having used one or more alternate mechanisms specified in this section, the first payment shall be in at least the amount that the fund would contain if the trust fund were established initially and annual payments made as specified in par. (c).

NR 665.0143(1)(f) (f) After the pay-in period is completed, whenever the current closure cost estimate changes, the owner or operator shall compare the new estimate with the trustee’s most recent annual valuation of the trust fund. If the value of the fund 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 fund so that its value after this deposit at least equals the amount of the current closure cost estimate, or obtain other financial assurance as specified in this section to cover the difference.

NR 665.0143(1)(g) (g) If the value of the trust fund is greater than the total amount of the current closure cost estimate, the owner or operator may submit a written request to the department for release of the amount in excess of the current closure cost estimate.

NR 665.0143(1)(h) (h) If an owner or operator substitutes other financial assurance as specified in this section for all or part of the trust fund, the owner or operator may submit a written request to the department for release of the amount in excess of the current closure cost estimate covered by the trust fund.

NR 665.0143(1)(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 trustee to release to the owner or operator funds as the department specifies in writing.

NR 665.0143(1)(j) (j) After beginning partial or final closure, an owner or operator or another person authorized to conduct partial or final closure may request reimbursements for partial or final closure expenditures by submitting itemized bills to the department. The owner or operator may request reimbursements for partial closure only if sufficient funds are remaining in the trust fund to cover the maximum costs of closing the facility over its remaining operating life. No later than 60 days after receiving bills for partial or final closure activities, the department will instruct the trustee to make reimbursements in those amounts as the department specifies in writing, if the department determines that the partial or final closure expenditures are in accordance with the approved closure plan, or otherwise justified. If the department has reason to believe that the maximum cost of closure over the remaining life of the facility will be significantly greater than the value of the trust fund, the department may withhold reimbursements of amounts as the department deems prudent until the department determines, in accordance with sub. (10) that the owner or operator is no longer required to maintain financial assurance for final closure of the facility. If the department does not instruct the trustee to make the reimbursements, the department will provide to the owner or operator a detailed written statement of reasons.

NR 665.0143(1)(k) (k) The department will agree to termination of the trust when one of the following applies:

NR 665.0143(1)(k)1. 1. An owner or operator substitutes alternate financial assurance as specified in this section.

NR 665.0143(1)(k)2. 2. The department releases the owner or operator from the requirements of this section in accordance with sub. (10).

NR 665.0143(2) (2) Surety bond guaranteeing payment into a closure trust fund.

NR 665.0143(2)(a) (a) An owner or operator may satisfy the requirements of this section by obtaining a surety bond which conforms to the requirements of this subsection and submitting the bond to the department. The surety company issuing the bond shall, at a minimum, be among those listed as acceptable sureties on federal bonds in Circular 570 of the U.S. department of the treasury.

NR 665.0143(2)(b) (b) The wording of the surety bond shall be identical to the wording on the department form specified in s. NR 664.0151 (2).

NR 665.0143(2)(c) (c) The owner or operator who uses a surety bond to satisfy the requirements of this section shall also establish a standby trust fund. Under the terms of the bond, all payments made shall be deposited by the surety directly into the standby trust fund in accordance with instructions from the department. This standby trust fund must meet the requirements specified in sub. (1) except for all of the following:

NR 665.0143(2)(c)1. 1. An originally signed duplicate of the trust agreement must be submitted to the department with the surety bond.

NR 665.0143(2)(c)2. 2. Until the standby trust fund is funded pursuant to the requirements of this section, all of the following are not required:

NR 665.0143(2)(c)2.a. a. Payments into the trust fund as specified in sub. (1).

NR 665.0143(2)(c)2.b. b. Updating of Schedule A of the trust agreement (see Form 4430-022) to show current closure cost estimates.

NR 665.0143(2)(c)2.c. c. Annual valuations as required by the trust agreement.

NR 665.0143(2)(c)2.d. d. Notices of nonpayment as required by the trust agreement.

NR 665.0143(2)(d) (d) The bond must guarantee that the owner or operator shall do any of the following:

NR 665.0143(2)(d)1. 1. Fund the standby trust fund in an amount equal to the penal sum of the bond before the beginning of final closure of the facility.

NR 665.0143(2)(d)2. 2. Fund the standby trust fund in an amount equal to the penal sum within 15 days after an administrative order to begin final closure issued by the department becomes final, or within 15 days after an order to begin final closure is issued.

NR 665.0143(2)(d)3. 3. Provide alternate financial assurance as specified in this section, and obtain the department’s written approval of the assurance provided, within 90 days after receipt by both the owner or operator and the department of a notice of cancellation of the bond from the surety.