Chapter NR 667

NR 667.0140 NR 667.0140 Who must comply with this subchapter, and briefly, what do they have to do?

NR 667.0140(1) (1) The requirements in this subchapter apply to owners and operators who treat or store hazardous waste under a subch. J of ch. NR 670 standardized license, except as provided in s. NR 667.0001 (2) or sub. (4).

NR 667.0140(2) (2) The owner or operator shall:

NR 667.0140(2)(a) (a) Prepare a closure cost estimate as required in s. NR 667.0142.

NR 667.0140(2)(b) (b) Demonstrate financial assurance for closure as required in s. NR 667.0143.

NR 667.0140(2)(c) (c) Demonstrate financial assurance for liability as required in s. NR 667.0147.

NR 667.0140(3) (3) The owner or operator shall notify the department if the owner or operator is named as a debtor in a bankruptcy proceeding under Title 11 of the United States Code (See also s. NR 667.0148).

NR 667.0140(4) (4) States and the federal government are exempt from the requirements of this subchapter.

NR 667.0140 History History: CR 16-007: cr. Register July 2017 No. 739, eff. 8-1-17; correction in (1) made under s. 35.17, Stats., Register July 2017 No. 739.

NR 667.0141 NR 667.0141 Definitions of terms used in this subchapter. When used in this subchapter, the following terms have the following meanings:

NR 667.0141(1) (1) “Closure plan” means the plan for closure prepared according to the requirements of s. NR 667.0112.

NR 667.0141(2) (2) “Current closure cost estimate” means the most recent of the estimates prepared according to s. NR 667.0142 (1), (2), and (3).

NR 667.0141(4) (4) “Parent corporation” means a corporation that directly owns at least 50 percent 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 667.0141(6) (6) The following terms are used in the specifications for the financial tests for closure and liability coverage. The definitions are intended to assist in the understanding of these regulations and are not intended to limit the meanings of terms in a way that conflicts with generally accepted accounting practices:

NR 667.0141(6)(a) (a) “Assets” means all existing and all probable future economic benefits obtained or controlled by a particular entity.

NR 667.0141(6)(b) (b) “Current plugging and abandonment cost estimate” means the most recent of the estimates prepared according to ch. NR 815.

NR 667.0141(6)(c) (c) “Independently audited” refers to an audit performed by an independent certified public accountant according to generally accepted auditing standards.

NR 667.0141(6)(d) (d) “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 667.0141(6)(e) (e) “Tangible net worth” means the tangible assets that remain after deducting liabilities. Tangible assets would not include intangibles such as goodwill and rights to patents or royalties.

NR 667.0141(7) (7) In the liability insurance requirements, the terms “bodily injury” and “property damage” shall have the meanings given these terms under state law. However, these terms do not include those liabilities which, consistent with standard industry practices, 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 following definitions of several of the terms are intended to assist in the understanding of these rules and are not intended to limit their meanings in a way that conflicts with general insurance industry usage:

NR 667.0141(7)(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 667.0141(7)(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 667.0141(7)(c) (c) “Sudden accidental occurrence” means an occurrence which is not continuous or repeated in nature.

NR 667.0141(8) (8) “Substantial business relationship” means the extent of a business relationship necessary under applicable state statute 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 667.0141 History History: CR 16-007: cr. Register July 2017 No. 739, eff. 8-1-17; correction

NR 667.0142 NR 667.0142 Cost estimate for closure.

NR 667.0142(1) (1) The owner or operator shall have at the facility a detailed written estimate, in current dollars, of the cost of closing the facility according to the requirements in ss. NR 667.0111 to 667.0115 and applicable closure requirements in ss. NR 667.0176, 667.0201, and 667.1108.

NR 667.0142(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 the closure plan (see s. NR 667.0112 (2)).

NR 667.0142(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 nor a subsidiary of the owner or operator. (See definition of parent corporation in s. NR 667.0141 (4).)

NR 667.0142(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, facility structures or equipment, land, or other assets associated with the facility at the time of partial or final closure.

NR 667.0142(1)(d) (d) The owner or operator may not incorporate a zero cost for hazardous wastes or non-hazardous wastes that might have economic value.

NR 667.0142(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 instruments used to comply with s. NR 667.0143. For owners and operators using the financial test or corporate guarantee, the closure cost estimate shall be updated for inflation within 30 days after the close of the firm’s fiscal year and before submission of updated information to the department as specified in s. NR 667.0143 (6) (b) 3. The adjustment may be made by recalculating the maximum costs of closure 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 667.0142(2)(a) (a) The first adjustment is made by multiplying the closure cost estimate by the inflation factor. The result is the adjusted closure cost estimate.

NR 667.0142(2)(b) (b) Subsequent adjustments are made by multiplying the latest adjusted closure cost estimate by the latest inflation factor.

NR 667.0142(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 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 667.0142(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 according to subs. (1) and (3) and, when this estimate has been adjusted according to sub. (2), the latest adjusted closure cost estimate.

NR 667.0142 History History: CR 16-007: cr. Register July 2017 No. 739, eff. 8-1-17.

NR 667.0143 NR 667.0143 Financial assurance for closure. The owner or operator shall establish financial assurance for closure of each storage or treatment unit owned or operated. In establishing financial assurance for closure, the owner or operator shall choose from the financial assurance mechanisms in subs. (1) to (7). The owner or operator may also use a combination of mechanisms for a single facility if they meet the requirement in sub. (8), or may use a single mechanism for multiple facilities as in sub. (9). The department shall release the owner or operator from the requirements of this section after the owner or operator meets the criteria under sub. (10).

NR 667.0143(1) (1) Closure trust fund. Owners and operators can use the closure trust fund that is specified in s. NR 664.0143 (1) (a) and (b) and (f) to (k). The following provisions also apply:

NR 667.0143(1)(a) (a) Payments into the trust fund for a new facility shall be made annually by the owner or operator over the remaining operating life of the facility as estimated in the closure plan, or over 3 years, whichever period is shorter. This period of time is hereafter referred to as the pay-in period.

NR 667.0143(1)(b) (b) For a new facility, the first payment into the closure trust fund shall be made before the facility may accept the initial storage. A receipt from the trustee shall be submitted by the owner or operator to the department before this initial storage of waste. The first payment shall be at least equal to the current closure cost estimate, divided by the number of years in the pay-in period, except as provided in sub. (8) for multiple mechanisms. Subsequent payments shall be made no later than 30 days after each anniversary date of the first payment. The owner or operator determines the amount of each subsequent payment by subtracting the current value of the trust fund from the current closure cost estimate and dividing this difference by the number of years remaining in the pay-in period. Mathematically, the formula is Next Payment = (Current Closure Estimate – Current Value of the Trust Fund) Divided by Years Remaining in the Pay- in Period.

NR 667.0143(1)(c) (c) The owner or operator of a facility existing on August 1, 2017, may establish a trust fund to meet the financial assurance requirements in this section. If the value of the trust fund is less than the current closure cost estimate when a final approval of the license is granted for the facility, the owner or operator shall pay the difference into the trust fund within 60 days.

NR 667.0143(1)(d) (d) The owner or operator may accelerate payments into the trust fund or deposit the full amount of the closure cost estimate when establishing the trust fund. 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. (b) or (c).

NR 667.0143(1)(e) (e) The owner or operator shall submit a trust agreement with the wording specified in s. NR 664.0151 (1) (a).

NR 667.0143(2) (2) Surety bond guaranteeing payment into a closure trust fund. Owners and operators can use the surety bond guaranteeing payment into a closure trust fund, as specified in s. NR 664.0143 (2), including the use of the surety bond instrument specified in s. NR 664.0151 (2) and the standby trust specified in s. NR 664.0143 (2) (c).

NR 667.0143(3) (3) Surety bond guaranteeing performance of closure. Owners and operators can use the surety bond guaranteeing performance of closure, as specified in s. NR 664.0143 (3), the submission and use of the surety bond instrument specified in s. NR 664.0151 (3).

NR 667.0143(4) (4) Closure letter of credit. Owners and operators can use the closure letter of credit specified in s. NR 664.0143 (4) and the submission and use of the irrevocable letter of credit instrument specified in s. NR 664.0151 (4).

NR 667.0143(5) (5) Closure insurance. Owners and operators can use closure insurance, as specified in s. NR 664.0143 (5), utilizing the certificate of insurance for closure specified s. NR 664.0151 (5).

NR 667.0143(6) (6) Corporate financial test. An owner or operator that satisfies the requirements of this section may demonstrate financial assurance up to the amount specified in this subsection:

NR 667.0143(6)(a) (a) Financial component.

NR 667.0143(6)(a)1. 1. The owner or operator shall satisfy one of the following three conditions:

NR 667.0143(6)(a)1.a. a. A current rating for its senior unsecured debt of AAA, AA, A, or BBB as issued by Standard and Poor’s or Aaa, Aa, A, or Baa as issued by Moody’s Investors Services.

NR 667.0143(6)(a)1.b. b. A ratio of less than 1.5 comparing total liabilities to net worth.

NR 667.0143(6)(a)1.c. c. A ratio of greater than 0.10 comparing the sum of net income plus depreciation, depletion and amortization, minus $10 million, to total liabilities.

NR 667.0143(6)(a)2. 2. The tangible net worth of the owner or operator shall be greater than:

NR 667.0143(6)(a)2.a. a. The sum of the current environmental obligations (see par. (b) 1. a.), including guarantees, covered by a financial test plus $10 million, except as provided in subd. 2.

NR 667.0143(6)(a)2.b. b. $10 million in tangible net worth plus the amount of any guarantees that have not been recognized as liabilities on the financial statements provided all of the environmental obligations (see par. (b) 1. a.) covered by a financial test are recognized as liabilities on the owner’s or operator’s audited financial statements and subject to the approval of the department.

NR 667.0143(6)(a)3. 3. The owner or operator shall have assets located in the United States amounting to at least the sum of environmental obligations covered by a financial test as described in par. (b) 1. a.

NR 667.0143(6)(b) (b) Recordkeeping and reporting requirements.

NR 667.0143(6)(b)1. 1. The owner or operator shall submit the following items to the department:

NR 667.0143(6)(b)1.a. a. A letter signed by the owner’s or operator’s chief financial officer that lists all the applicable current types, amounts and sums of environmental obligations covered by a financial test. These obligations include liability, closure, post-closure, and corrective action cost estimates required for hazardous waste treatment, storage and disposal facilities under ss. NR 664.0101, 664.0142, 664.0144, 664.0147, 665.0142, 665.0144, and 665.0147. The letter shall also provide evidence demonstrating that the firm meets the conditions of either par. (a) 1. a. or b. or (a) 1. c. and 2. and 3.

NR 667.0143(6)(b)1.b. b. A copy of the independent certified public accountant’s unqualified opinion of the owner’s or operator’s financial statements for the latest completed fiscal year. To be eligible to use the financial test, the owner’s or operator’s financial statements shall receive an unqualified opinion from the independent certified public accountant. An adverse opinion, disclaimer of opinion or other qualified opinion will be cause for disallowance, with the potential exception for qualified opinions provided in the next sentence. The department may evaluate qualified opinions on a case-by-case basis and allow use of the financial test in cases where the department deems that the matters which form the basis for the qualification are insufficient to warrant disallowing the test. If the department does not allow use of the test, the owner or operator shall provide alternate financial assurance that meets the requirements of this section within 30 days after the notification of disallowance.

NR 667.0143(6)(b)1.c. c. If the chief financial officer’s letter providing evidence of financial assurance includes financial data showing that the owner or operator satisfies par. (a) 1. b. or c. that are different from data in the audited financial statements referred to in subd. 1. b. or any other audited financial statement or data filed with the SEC, then a special report from the owner’s or operator’s independent certified public accountant to the owner or operator is required. The special report shall be based upon an agreed upon procedures engagement in accordance with professional auditing standards and shall describe the procedures performed in comparing the data in the chief financial officer’s letter derived from the independently audited, year-end financial statements for the latest fiscal year with the amounts in such financial statements, the findings of that comparison and the reasons for any differences.

NR 667.0143(6)(b)1.d. d. If the chief financial officer’s letter provides a demonstration that the firm has assured for environmental obligations as provided in par. (a) 2. b., then the letter shall include a report from the independent certified public accountant that verifies that all of the environmental obligations covered by a financial test have been recognized as liabilities on the audited financial statements, how these obligations have been measured and reported and that the tangible net worth of the firm is at least $10 million plus the amount of any guarantees provided.

NR 667.0143(6)(b)2. 2. The owner or operator of a new facility shall submit the items specified in subd.1. to the department at least 60 days before placing waste in the facility.

NR 667.0143(6)(b)3. 3. After the initial submission of items specified in subd. 1., the owner or operator shall send updated information to the department within 90 days following the close of the owner or operator’s fiscal year. The department may provide up to an additional 45 days for an owner or operator who can demonstrate that 90 days is insufficient time to acquire audited financial statements. The updated information shall consist of all items specified in subd.1.

NR 667.0143(6)(b)4. 4. The owner or operator is no longer required to submit the items specified in this paragraph or comply with the requirements of this section if either:

NR 667.0143(6)(b)4.a. a. The owner or operator substitutes alternate financial assurance as specified in this section that is not subject to these recordkeeping and reporting requirements.

NR 667.0143(6)(b)4.b. b. The department releases the owner or operator from the requirements of this section, according to sub. (10).

NR 667.0143(6)(b)5. 5. An owner or operator who no longer meets the requirements of par. (a) may not use the financial test to demonstrate financial assurance. Instead an owner or operator who no longer meets the requirements of par. (a), shall:

NR 667.0143(6)(b)5.a. a. Send notice to the department of intent to establish alternate financial assurance as specified in this section. The owner or operator shall send this notice by certified mail within 90 days following the close the owner or operator’s fiscal year for which the year-end financial data show that the owner or operator no longer meets the requirements of this section.

NR 667.0143(6)(b)5.b. b. Provide alternative financial assurance within 120 days after the end of such fiscal year.

NR 667.0143(6)(b)6. 6. The department may, based on a reasonable belief that the owner or operator may no longer meet the requirements of par. (a), require at any time the owner or operator to provide reports of its financial condition in addition to or including current financial test documentation as specified in this paragraph. If the department finds that the owner or operator no longer meets the requirements of par. (a), the owner or operator shall provide alternate financial assurance that meets the requirements of this section.

NR 667.0143(7) (7) Corporate guarantee.

NR 667.0143(7)(a) (a) An owner or operator may meet the requirements of this section by obtaining a written 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 sub. (6) and shall comply with the terms of the guarantee. The wording of the guarantee shall be identical to the wording in s. NR 664.0151 (8). The certified copy of the guarantee shall accompany the letter from the guarantor’s chief financial officer and accountants’ opinions. If the guarantor’s parent corporation is also the parent corporation of the owner or operator, the letter from the guarantor’s chief financial officer 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.

NR 667.0143(7)(b) (b) For a new facility, the guarantee shall be effective and the guarantor shall submit the items in par. (a) and the items specified in sub. (6) (b) 1. to the department at least 60 days before the owner or operator places waste in the facility.

NR 667.0143(7)(c) (c) The terms of the guarantee shall provide that:

NR 667.0143(7)(c)1. 1. If the owner or operator fails to perform closure at a facility covered by the guarantee, the guarantor shall either:

NR 667.0143(7)(c)1.a. a. Perform or pay a third party to perform closure (performance guarantee).

NR 667.0143(7)(c)1.b. b. Establish a fully funded trust fund as specified in sub. (1) (a) in the name of the owner or operator (payment guarantee)

NR 667.0143(7)(c)2. 2. The guarantee shall remain in force for as long as the owner or operator is required to comply with the applicable financial assurance requirements of this subchapter unless the guarantor sends prior notice of cancellation by certified mail to the owner or operator and to the department. Cancellation may not occur, however, during the 120 days beginning on the date of receipt of the notice of cancellation by both the owner or operator and the department as evidenced by the return receipts.

NR 667.0143(7)(c)3. 3. If notice of cancellation is given, the owner or operator shall, within 90 days following receipt of the cancellation notice by the owner or operator and the department, obtain alternate financial assurance and submit documentation for that alternate financial assurance to the department. If the owner or operator fails to provide alternate financial assurance and obtain the written approval of such alternative assurance from the department within the 90-day period, the guarantor shall provide that alternate assurance in the name of the owner or operator and submit the necessary documentation for the alternative assurance to the department within 120 days of the cancellation notice.

NR 667.0143(7)(c)4. 4. If a corporate guarantor no longer meets the requirements of sub. (6) (a), the owner or operator shall, within 90 days, obtain alternative assurance and submit the assurance to the department for approval. If the owner or operator fails to provide alternate financial assurance within the 90-day period, the guarantor shall provide that alternate assurance within the next 30 days and submit it to the department for approval.

NR 667.0143(7)(c)5. 5. The guarantor is no longer required to meet the requirements of this section when either:

NR 667.0143(7)(c)5.a. a. The owner or operator substitutes alternate financial assurance as specified in this section.

NR 667.0143(7)(c)5.b. b. The owner or operator is released from the requirements of this section according to sub. (10).

NR 667.0143(8) (8) Use of multiple financial mechanisms. An owner or operator may use more than one mechanism at a particular facility to satisfy the requirements of this section. The acceptable mechanisms are trust funds, surety bonds guaranteeing payment into a trust fund, letters of credit, insurance, the financial test, and the guarantee, except owners or operators cannot combine the financial test with the guarantee. The mechanisms shall be as specified in subs. (1), (2), (4), (5), (6), and (7) respectively, except it is the combination of mechanisms rather than a single mechanism that shall provide assurance for an amount at least equal to the cost estimate. If an owner or operator uses a trust fund in combination with a surety bond or letter of credit, the owner or operator may use the trust fund as the standby trust for the other mechanisms. A single trust fund may be established for 2 or more mechanisms. The department may use any or all of the mechanisms to provide for closure of the facility.

NR 667.0143(9) (9) Use of a financial mechanism for multiple facilities. An owner or operator may use a financial mechanism for multiple facilities, as specified in s. NR 664.0143 (8).

NR 667.0143(10) (10) Release of the owner or operator from the requirements of this section. Within 60 days after receiving certifications from the owner or operator and an independent registered professional engineer that final closure has been completed in accordance with the approved closure plan, the department shall notify the owner or operator in writing that the owner or operator is no longer required by this section to maintain financial assurance for final closure of the facility, unless the department has reason to believe that final closure has not been completed in accordance with the approved closure plan. The department shall provide the owner or operator with a detailed written statement of any such reasons to believe that closure has not been conducted in accordance with the approved closure plan.