NR 661.0147(10)(a)(a) An owner or operator may satisfy the requirements of this section by establishing a trust fund that conforms to the requirements of this subsection and submitting an originally signed duplicate of the trust agreement to the department. NR 661.0147(10)(b)(b) The trustee shall be an entity that has the authority to act as a trustee and whose trust operations are regulated and examined by a federal or state agency. NR 661.0147(10)(c)(c) The trust fund for liability coverage shall be funded for the full amount of the liability coverage to be provided by the trust fund before it may be relied upon to satisfy the requirements of this section. If at any time after the trust fund is created the amount of funds in the trust fund is reduced below the full amount of the liability coverage to be provided, the owner or operator, by the anniversary date of the establishment of the fund, shall either add sufficient funds to the trust fund to cause its value to equal the full amount of liability coverage to be provided, or obtain other financial assurance as specified in this section to cover the difference. For the purposes of this paragraph, “the full amount of the liability coverage to be provided” means the amount of coverage for sudden or non-sudden occurrences, or both, required to be provided by the owner or operator by this section, less the amount of financial assurance for liability coverage that is being provided by other financial assurance mechanisms being used to demonstrate financial assurance by the owner or operator. NR 661.0147 HistoryHistory: CR 19-082: cr. Register August 2020 No. 776, eff. 9-1-20; correction in (2) (f), (10) (c) made under s. 13.92 (4) (b) 7., Stats., and correction in (6) (c) 3., (10) (c) made under s. 35.17, Stats., Register August 2020 No. 776; correction in (7) (b) 2. b. made under s. 13.92 (4) (b) 7., Stats., Register April 2021 No. 784. NR 661.0148NR 661.0148 Incapacity of owners or operators, guarantors, or financial institutions. NR 661.0148(1)(1) An owner or operator shall notify the department by certified mail of the commencement of a voluntary or involuntary bankruptcy proceeding under Title 11, U.S. Code, naming the owner or operator as debtor, within 10 days after commencement of the proceeding. A guarantor of a corporate guarantee as specified in s. NR 661.0143 (5) shall make such a notification if named as debtor, as required under the terms of the corporate guarantee. NR 661.0148(2)(2) An owner or operator who fulfills the requirements specified in s. NR 661.0143 or 661.0147 by obtaining a trust fund, surety bond, letter of credit, or insurance policy will be deemed to be without the required financial assurance or liability coverage in the event of bankruptcy of the trustee or issuing institution, or a suspension or revocation of the authority of the trustee institution to act as trustee or of the institution issuing the surety bond, letter of credit, or insurance policy to issue such instruments. The owner or operator shall establish other financial assurance or liability coverage within 60 days after such an event. NR 661.0148 HistoryHistory: CR 19-082: cr. Register August 2020 No. 776, eff. 9-1-20; correction in (2) made under s. 35.17, Stats., Register August 2020 No. 776. NR 661.0151(1)(a)(a) A trust agreement for a trust fund, as specified in s. NR 661.0143 (1) shall be worded as follows, except that instructions in brackets are to be replaced with the relevant information and the brackets deleted: Trust Agreement
Trust Agreement, the “Agreement,” entered into as of [date] by and between [name of the owner or operator], a [name of State] [insert “corporation,” “partnership,” “association,” or “proprietorship”], the “Grantor,” and [name of corporate trustee], [insert “incorporated in the State of -----” or “a national bank”], the “Trustee.”
Whereas, the Wisconsin Department of Natural Resources, “the department,” has established certain regulations applicable to the Grantor, requiring that an owner or operator of a facility regulated under ch. NR 664, or 665, Wis. Adm. Code, or satisfying the conditions of the exclusion under s. NR 661.0004 (1) (x), Wis. Adm. Code, shall provide assurance that funds will be available if needed for care of the facility under subch. G of ch. NR 664 or subch. G of ch. NR 665, Wis. Adm. Code as applicable, Whereas, the Grantor has elected to establish a trust to provide all or part of such financial assurance for the facilities identified herein,
Whereas, the Grantor, acting through its duly authorized officers, has selected the Trustee to be the trustee under this agreement, and the Trustee is willing to act as trustee,
Now, Therefore, the Grantor and the Trustee agree as follows:
Section 1. Definitions. As used in this Agreement:
(a) The term “Grantor” means the owner or operator who enters into this Agreement and any successors or assigns of the Grantor.
(b) The term “Trustee” means the Trustee who enters into this Agreement and any successor Trustee.
Section 2. Identification of Facilities and Cost Estimates. This Agreement pertains to the facilities and cost estimates identified on attached Schedule A [on Schedule A, for each facility list the EPA Identification Number (if available), name, address, and the current cost estimates, or portions thereof, for which financial assurance is demonstrated by this Agreement].
Section 3. Establishment of Fund. The Grantor and the Trustee hereby establish a trust fund, the “Fund,” for the benefit of the department in the event that the hazardous secondary material of the grantor no longer meet the conditions of the exclusion under s. NR 661.0004 (1) (x), Wis. Adm. Code. The Grantor and the Trustee intend that no third party have access to the Fund except as herein provided. The Fund is established initially as consisting of the property, which is acceptable to the Trustee, described in Schedule B attached hereto. Such property and any other property subsequently transferred to the Trustee is referred to as the Fund, together with all earnings and profits thereon, less any payments or distributions made by the Trustee pursuant to this Agreement. The Fund shall be held by the Trustee, IN TRUST, as hereinafter provided. The Trustee may not be responsible nor shall it undertake any responsibility for the amount or adequacy of, nor any duty to collect from the Grantor, any payments necessary to discharge any liabilities of the Grantor established by the department. Section 4. Payments from the Fund. The Trustee shall make payments from the Fund as the department shall direct, in writing, to provide for the payment of the costs of the performance of activities required under subch. G of ch. NR 664 or subch. G of ch. NR 665, Wis. Adm. Code, for the facilities covered by this Agreement. The Trustee shall reimburse the Grantor or other persons as specified by the department from the Fund for expenditures for such activities in such amounts as the beneficiary shall direct in writing. In addition, the Trustee shall refund to the Grantor such amounts as the depart specifies in writing. Upon refund, such funds shall no longer constitute part of the Fund as defined herein. Section 5. Payments Comprising the Fund. Payments made to the Trustee for the Fund shall consist of cash or securities acceptable to the Trustee.
Section 6. Trustee Management. The Trustee shall invest and reinvest the principal and income of the Fund and keep the Fund invested as a single fund, without distinction between principal and income, in accordance with general investment policies and guidelines which the Grantor may communicate in writing to the Trustee from time to time, subject, however, to the provisions of this section. In investing, reinvesting, exchanging, selling, and managing the Fund, the Trustee shall discharge the duties with respect to the trust fund solely in the interest of the beneficiary and with the care, skill, prudence, and diligence under the circumstances then prevailing which persons of prudence, acting in a like capacity and familiar with such matters, would use in the conduct of an enterprise of a like character and with like aims; except that:
(a) Securities or other obligations of the Grantor, or any other owner or operator of the facilities, or any of their affiliates as defined in the Investment Company Act of 1940, as amended, 15 USC 80a-2. (a), may not be acquired or held, unless they are securities or other obligations of the Federal or a State government;