Wisconsin Legislature: ATCP 93.720(4)(c)

(1) To use a surety bond to meet the financial responsibility requirements of s. ATCP 93.705, an owner or operator shall obtain a surety bond that conforms to the requirements of this section. The surety company issuing the bond shall be listed as an acceptable surety on federal bonds in the latest Circular 570 of the U.S. department of the treasury.

(2) The surety bond shall be worded exactly as found in 40 CFR 280.98 (b), except for the following:

(a) The instructions in brackets in the surety bond shall be replaced by the relevant information and the brackets deleted.

(b) If financial responsibility for aboveground tanks within the scope of this subchapter is demonstrated using this method, all of the following changes shall be made:

1. Reference in the surety bond to underground tanks shall be amended to refer to aboveground tanks.

2. Certification that wording is identical to the wording required in 40 CFR 280.98 (b) shall be deleted.

Note: A link to 40 CFR 280 is available at the following EPA Web site: http://www.epa.gov/oust/fedlaws/cfr.htm.

(3) Under the terms of the bond, the surety shall be liable on the bond obligation when the owner or operator fails to perform as guaranteed by the bond. In all cases, the surety’s liability is limited to the per-occurrence and annual aggregate penal sums.

(4)

(a) The owner or operator who uses a surety bond to satisfy the requirements of s. ATCP 93.705 shall establish a standby trust fund when the surety bond is acquired.

(b) Under the terms of the bond, all amounts paid by the surety under the bond shall be deposited directly into the standby trust fund in accordance with instructions from the department under s. ATCP 93.747.

(5) The owner of the property on which tanks are located has ultimate responsibility under this chapter and shall be listed as a co-beneficiary of any policy issued.

History: CR 17-092: cr. Register October 2019 No. 766, eff. 11-1-19.

ATCP 93.720 Letter of credit.

(1) To use a letter of credit to meet the financial responsibility requirements of s. ATCP 93.705, an owner or operator shall obtain an irrevocable standby letter of credit that conforms to the requirements of this section. The issuing institution shall be authorized to issue letters of credit in each state where the letters are used and the institution’s letter of credit operations shall be regulated and examined by a federal or state agency.

(2) The letter of credit shall be worded exactly as found in 40 CFR 280.99 (b), except for the following:

(a) The instructions in brackets in the letter shall be replaced by the relevant information and the brackets deleted.

(b) If financial responsibility for aboveground tanks within the scope of this subchapter is demonstrated using this method, all of the following changes shall be made:

1. Reference in the letter to underground tanks shall be amended to refer to aboveground tanks.

2. Certification that wording is identical to the wording required in 40 CFR 280.99 (b) shall be deleted.

Note: A link to 40 CFR 280 is available at the following EPA Web site: http://www.epa.gov/oust/fedlaws/cfr.htm.

(3)

(a) An owner or operator who uses a letter of credit to satisfy the requirements of s. ATCP 93.705 shall also establish a standby trust fund when the letter of credit is acquired.

(b) Under the terms of the letter of credit, all amounts paid pursuant to a draft by the department shall be deposited by the issuing institution directly into the standby trust fund in accordance with instructions from the department under s. ATCP 93.747.

(4)

(a) The letter of credit shall be irrevocable with a term specified by the issuing institution.

(b) The letter of credit shall provide that credit be automatically renewed for the same term as the original term, unless, at least 120 days before the current expiration date, the issuing institution notifies the owner or operator by certified mail of its decision not to renew the letter of credit.

(c) Under the terms of the letter of credit, the 120 days shall begin on the date the owner or operator receives the notice as evidenced by the return receipt.

History: CR 17-092: cr. Register October 2019 No. 766, eff. 11-1-19.

ATCP 93.723 Trust fund.

(1) To use a trust fund to meet the financial responsibility requirements of s. ATCP 93.705, an owner or operator shall establish a trust fund that conforms to the requirements of this section. 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 agency or an agency of the state in which the fund is established.

(2) The wording of the trust agreement shall be identical to the wording specified in 40 CFR 280.103 (b) (1), except for the following:

(a) The instructions in brackets in the agreement shall be replaced by the relevant information and the brackets deleted.

(b) If financial responsibility for aboveground tanks within the scope of this subchapter is demonstrated using this method, all of the following changes shall be made:

1. Reference in the agreement to underground tanks shall be amended to refer to aboveground tanks.

2. Certification that wording is identical to the wording required in 40 CFR 280.103 (b) (1) shall be deleted.

Note: A link to 40 CFR 280 is available at the following EPA Web site: http://www.epa.gov/oust/fedlaws/cfr.htm.

(3) The trust agreement shall be accompanied by a formal certification of acknowledgment as specified in 40 CFR 280.103 (b) (2).

(4) The trust fund, when established, shall be funded for the full required amount of coverage or funded for part of the required amount of coverage and used in combination with other mechanisms that provide the remaining required coverage.

(5) If the value of the trust fund is greater than the required amount of coverage, the owner or operator may submit a written request to the department for release of the excess.

(6) If other financial assurance as specified in this subchapter is substituted for all or part of the trust fund, the owner or operator may submit a written request to the department for release of the excess.

(7) Within 60 days after receiving a request from the owner or operator for release of funds as specified in sub. (5) or (6), the department shall instruct the trustee to release to the owner or operator such funds as the department specifies in writing.

History: CR 17-092: cr. Register October 2019 No. 766, eff. 11-1-19.

ATCP 93.725 Standby trust fund.

(1)

(a) An owner or operator using any one of the mechanisms authorized by s. ATCP 93.713, 93.717, or 93.720 shall establish a standby trust fund when the mechanism is acquired.

(b) The trustee of the standby trust fund shall be an entity that has the authority to act as a trustee and whose trust operations are regulated and examined by a federal agency or an agency of the state in which the fund is established.

(2) The wording of the standby trust agreement or trust agreement shall be identical to the wording specified in 40 CFR 280.103 (b) (1), except for the following:

(a) The instructions in brackets in the agreement shall be replaced by the relevant information and the brackets deleted.

(b) If financial responsibility for aboveground tanks within the scope of this subchapter is demonstrated using this method, all of the following changes shall be made:

1. Reference in the agreement to underground tanks shall be amended to refer to aboveground tanks.

2. Certification that wording is identical to the wording required in 40 CFR 280.103 (b) (1) shall be deleted.

Note: A link to 40 CFR 280 is available at the following EPA Web site: http://www.epa.gov/oust/fedlaws/cfr.htm.

(3) The department shall instruct the trustee to refund the balance of the standby trust fund to the provider of financial assurance if the department determines that no additional corrective action costs or third-party liability claims will occur as a result of a release covered by the financial assurance mechanism for which the standby trust fund was established.

(4) An owner or operator may establish one trust fund as the depository mechanism for all funds assured in compliance with this section.

History: CR 17-092: cr. Register October 2019 No. 766, eff. 11-1-19.

ATCP 93.727 Local government bond rating test.

(1)

(a) To use the bond rating test to meet the financial responsibility requirements of s. ATCP 93.705, a general purpose local government owner or operator or local government serving as a guarantor shall have a currently outstanding issue or issues of general obligation bonds of $1 million or more, excluding refunded obligations, with a Moody’s rating of Aaa, Aa, A, or Baa, or a Standard & Poor’s rating of AAA, AA, A, or BBB.

(b) Where a local government has multiple outstanding issues, or where a local government’s bonds are rated by both Moody’s and Standard and Poor’s, the lowest rating shall be used to determine eligibility.

(c) Bonds that are backed by credit enhancement other than municipal bond insurance may not be considered in determining the amount of applicable bonds outstanding.

(2)

(a) A local government owner or operator or local government serving as a guarantor that is not a general purpose local government and does not have the legal authority to issue general obligation bonds may satisfy the requirements of s. ATCP 93.705 by having a currently outstanding issue or issues of revenue bonds of $1 million or more, excluding refunded issues, and by also having a Moody’s rating of Aaa, Aa, A, or Baa, or a Standard & Poor’s rating of AAA, AA, A, or BBB as the lowest rating for any rated revenue bond issued by the local government.

(b) Where bonds are rated by both Moody’s and Standard & Poor’s, the lower rating for each bond shall be used to determine eligibility.

(c) Bonds that are backed by credit enhancement may not be considered in determining the amount of applicable bonds outstanding.

(3) The local government owner or operator or guarantor shall maintain a copy of its bond rating published within the last 12 months by Moody’s or Standard & Poor’s.

(4) To demonstrate that it meets the local government bond rating test, the chief financial officer of a general purpose local government owner or operator or guarantor shall sign a letter that is identical to the letter specified in 40 CFR 280.104 (d), except for the following:

(a) The instructions in brackets in the letter shall be replaced by the relevant information and the brackets deleted.

(b) If financial responsibility for aboveground tanks within the scope of this subchapter is demonstrated using this method, all of the following changes shall be made:

1. Reference in the letter to underground tanks shall be amended to refer to aboveground tanks.

2. Certification that wording is identical to the wording required in 40 CFR 280.104 (d) shall be deleted.

Note: A link to 40 CFR 280 is available at the following EPA Web site: http://www.epa.gov/oust/fedlaws/cfr.htm.

(5) To demonstrate that it meets the local government bond rating test, the chief financial officer of a local government owner or operator or guarantor other than a general purpose government shall sign a letter which is identical to the letter specified in 40 CFR 280.104 (e), except for the following:

(a) The instructions in brackets in the letter shall be replaced by the relevant information and the brackets deleted.

(b) If financial responsibility for aboveground tanks within the scope of this subchapter is demonstrated using this method, all of the following changes shall be made:

1. Reference in the letter to underground tanks shall be amended to refer to aboveground tanks.

2. Certification that wording is identical to the wording required in 40 CFR 280.104 (e) shall be deleted.

Note: A link to 40 CFR 280 is available at the following EPA Web site: http://www.epa.gov/oust/fedlaws/cfr.htm.

(6) The department may require reports of financial condition at any time from the local government owner or operator or local government guarantor. If the department finds that the local government owner or operator or guarantor no longer meets the local government bond rating test requirements of this section, the local government owner or operator shall obtain alternative coverage within 30 days after notification of such a finding.

(7) If a local government owner or operator or local government guarantor using the bond rating test to provide financial assurance finds that it no longer meets the bond rating test requirements, the local government owner or operator shall obtain alternative coverage within 150 days of the change in status.

(8) If the local government owner or operator fails to obtain alternate assurance within 150 days of finding that it no longer meets the requirements of the bond rating test, or within 30 days of notification by the department that the owner or operator no longer meets the requirements of the bond rating test, the owner or operator shall notify the department of such failure within 10 days.

History: CR 17-092: cr. Register October 2019 No. 766, eff. 11-1-19.

ATCP 93.730 Local government financial test.

(1) To use a financial test to meet the financial responsibility requirements of s. ATCP 93.705, a local government owner or operator shall pass the financial test specified in this section. To be eligible to use the financial test, the local government owner or operator shall have the ability and authority to assess and levy taxes or to freely establish fees and charges. To pass the local government financial test, the owner or operator shall meet the criteria of this section based on year-end financial statements for the latest completed fiscal year.

(2) The local government owner or operator shall have the following information available, as shown in the year-end financial statements for the latest completed fiscal year:

(a) Total revenues consisting of the sum of general fund operating and non-operating revenues including net local taxes, licenses and permits, fines and forfeitures, revenues from use of money and property, charges for services, investment earnings, sales of assets such as property and publications, restricted and unrestricted intergovernmental revenues, and total revenues from all other governmental funds including enterprise, debt service, capital projects, and special revenues, but excluding revenues to funds held in a trust or agency capacity. For purposes of this test, the calculation of total revenues excludes all transfers between funds under the direct control of the local government using the financial test, liquidation of investments and issuance of debt.

(b) Total expenditures consisting of the sum of general fund operating and non-operating expenditures including public safety, public utilities, transportation, public works, environmental protection, cultural and recreational, community development, revenue sharing, employee benefits and compensation, office management, planning and zoning, capital projects, interest payments on debt, payments for retirement of debt principal, and total expenditures from all other governmental funds including enterprise, debt service, capital projects, and special revenues. For purposes of this test, the calculation of total expenditures excludes all transfers between funds under the direct control of the local government using the financial test.