NR 661.0142(4)
(4) The owner or operator shall keep the following at the facility during the operating life of the facility: The latest cost estimate prepared in accordance with subs.
(1) and
(3) and, when this estimate has been adjusted in accordance with sub.
(2), the latest adjusted cost estimate.
NR 661.0142 History
History: CR 19-082: cr. Register August 2020 No. 776, eff. 9-1-20; correction in (1) (c), (d) made under s. 13.92 (4) (b) 7., Stats., Register April 2021 No. 778. NR 661.0143
NR 661.0143
Financial assurance condition. As specified in s.
NR 661.0004 (1) (x) 6. f. an owner or operator of a reclamation or intermediate facility shall have financial assurance as a condition of the exclusion as required under s.
NR 661.0004 (1) (x). The facility shall choose from the options specified in subs.
(1) to
(5).
NR 661.0143(1)(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. 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 661.0143(1)(b)
(b) The wording of the trust agreement shall be identical to the wording specified in s.
NR 661.0151 (1) (a), and the trust agreement shall be accompanied by a formal certification of acknowledgment as specified in s.
NR 661.0151 (1) (b). Schedule A of the trust agreement shall be updated within 60 days after a change in the amount of the current cost estimate covered by the agreement.
NR 661.0143(1)(c)
(c) The trust fund shall be funded for the full amount of the current cost estimate before it may be relied upon to satisfy the requirements of this section.
NR 661.0143(1)(d)
(d) Whenever the current 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 cost estimate, or obtain other financial assurance as specified in this section to cover the difference.
NR 661.0143(1)(e)
(e) If the value of the trust fund is greater than the total amount of the current cost estimate, the owner or operator may submit a written request to the department for release of the amount in excess of the current cost estimate.
NR 661.0143(1)(f)
(f) 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 cost estimate covered by the trust fund.
NR 661.0143(1)(g)
(g) Within 60 days after receiving a request from the owner or operator for release of funds as specified in pars.
(e) or
(f), the department will instruct the trustee to release to the owner or operator such funds as the department specifies in writing. If the owner or operator begins final closure under subch.
G of ch. NR 664 or subch.
G of ch. NR 665, an owner or operator 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 such amounts as the department deems prudent until the department determines, in accordance with s.
NR 665.0143 (9), 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 such reimbursements, the department will provide to the owner or operator a detailed written statement of reasons.
NR 661.0143(1)(h)
(h) The department will agree to termination of the trust when one of the following apply:
NR 661.0143(1)(h)1.
1. An owner or operator substitutes alternate financial assurance as specified in this section.
NR 661.0143(1)(h)2.
2. The department releases the owner or operator from the requirements of this section in accordance with sub.
(9).
NR 661.0143(2)
(2)
Surety bond guaranteeing payment into a trust fund. NR 661.0143(2)(a)(a) An owner or operator may satisfy the requirements of this section by obtaining a surety bond that 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 661.0143(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 thereunder will be deposited by the surety directly into the standby trust fund in accordance with instructions from the department. This standby trust fund shall meet the requirements specified in sub.
(1), except for all of the following:
NR 661.0143(2)(c)1.
1. An originally signed duplicate of the trust agreement shall be submitted to the department with the surety bond.
NR 661.0143(2)(c)2.
2. Until the standby trust fund is funded pursuant to the requirements of this section, none of the following are required:
NR 661.0143(2)(d)
(d) The bond must guarantee that the owner or operator shall do any of the following:
NR 661.0143(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 closure issued by the department becomes final, or within 15 days after an order to begin closure is issued by a U.S. district court or other court of competent jurisdiction.
NR 661.0143(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.
NR 661.0143(2)(e)
(e) Under the terms of the bond, the surety will become liable on the bond obligation when the owner or operator fails to perform as guaranteed by the bond.
NR 661.0143(2)(f)
(f) Except as provided in sub.
(6), the penal sum of the bond shall be in an amount at least equal to the current cost estimate.
NR 661.0143(2)(g)
(g) Whenever the current cost estimate increases to an amount greater than the penal sum, the owner or operator, within 60 days after the increase, shall either cause the penal sum to be increased to an amount at least equal to the current cost estimate and submit evidence of such increase to the department, or obtain other financial assurance as specified in this section to cover the increase. Whenever the current cost estimate decreases, the penal sum may be reduced to the amount of the current cost estimate following written approval by the department.
NR 661.0143(2)(h)
(h) Under the terms of the bond, the surety may cancel the bond by sending 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 661.0143(2)(i)
(i) The owner or operator may cancel the bond if the department has given prior written consent based on the department's receipt of evidence of alternate financial assurance as specified in this section.
NR 661.0143(3)(a)(a) An owner or operator may satisfy the requirements of this section by obtaining an irrevocable standby letter of credit that conforms to the requirements of this subsection and submitting the letter to the department. The issuing institution shall be an entity that has the authority to issue letters of credit and whose letter-of-credit operations are regulated and examined by a federal or state agency.
NR 661.0143(3)(c)
(c) An owner or operator who uses a letter of credit to satisfy the requirements of this section shall also establish a standby trust fund. Under the terms of the letter of credit, all amounts paid pursuant to a draft by the department will be deposited by the issuing institution directly into the standby trust fund in accordance with instructions from the department. This standby trust fund shall meet the requirements of the trust fund specified in sub.
(1), except for all of the following:
NR 661.0143(3)(c)1.
1. An originally signed duplicate of the trust agreement shall be submitted to the department with the letter of credit.
NR 661.0143(3)(c)2.
2. Unless the standby trust fund is funded pursuant to the requirements of this section, none of the following are required:
NR 661.0143(3)(d)
(d) The letter of credit shall be accompanied by a letter from the owner or operator referring to the letter of credit by number, issuing institution, and date, and providing the following information: The EPA Identification Number, if any issued; name, and address of the facility; and the amount of funds assured for the facility by the letter of credit.
NR 661.0143(3)(e)
(e) The letter of credit shall be irrevocable and issued for a period of at least one year. The letter of credit shall provide that the expiration date will be automatically extended for a period of at least one year unless, at least 120 days before the current expiration date, the issuing institution notifies both the owner or operator and the department by certified mail of a decision not to extend the expiration date. Under the terms of the letter of credit, the 120 days will begin on the date when both the owner or operator and the department have received the notice, as evidenced by the return receipts.
NR 661.0143(3)(f)
(f) Except as provided in sub.
(6), the letter of credit shall be issued in an amount at least equal to the current cost estimate.
NR 661.0143(3)(g)
(g) Whenever the current cost estimate increases to an amount greater than the amount of the credit, the owner or operator, within 60 days after the increase, shall either cause the amount of the credit to be increased so that it at least equals the current cost estimate and submit evidence of such increase to the department, or obtain other financial assurance as specified in this section to cover the increase. Whenever the current cost estimate decreases, the amount of the credit may be reduced to the amount of the current cost estimate following written approval by the department.
NR 661.0143(3)(h)
(h) Following a determination by the department that the hazardous secondary material do not meet the conditions of the exclusion under s.
NR 661.0004 (1) (x), the department may draw on the letter of credit.
NR 661.0143(3)(i)
(i) If the owner or operator does not establish alternate financial assurance as specified in this section and obtain written approval of such alternate assurance from the department within 90 days after receipt by both the owner or operator and the department of a notice from the issuing institution that it has decided not to extend the letter of credit beyond the current expiration date, the department will draw on the letter of credit. The department may delay the drawing if the issuing institution grants an extension of the term of the credit. During the last 30 days of any such extension the department will draw on the letter of credit if the owner or operator has failed to provide alternate financial assurance as specified in this section and obtain written approval of such assurance from the department.
NR 661.0143(3)(j)
(j) The department will return the letter of credit to the issuing institution for termination when any of the following apply:
NR 661.0143(3)(j)1.
1. An owner or operator substitutes alternate financial assurance as specified in this section.
NR 661.0143(3)(j)2.
2. The department releases the owner or operator from the requirements of this section in accordance with sub.
(9).
NR 661.0143(4)(a)
(a) An owner or operator may satisfy the requirements of this section by obtaining insurance that conforms to the requirements of this subsection and submitting a certificate of such insurance to the department. At a minimum, 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.
NR 661.0143(4)(c)
(c) The insurance policy shall be issued for a face amount at least equal to the current cost estimate, except as provided in sub.
(6). The term “face amount” means the total amount the insurer is obligated to pay under the policy. Actual payments by the insurer will not change the face amount, although the insurer's future liability will be lowered by the amount of the payments.
NR 661.0143(4)(d)
(d) The insurance policy shall guarantee that funds will be available whenever needed to pay the cost of removal of all hazardous secondary material from the unit, to pay the cost of decontamination of the unit, to pay the costs of the performance of activities required under subch.
G of ch. NR 664 or subch.
G of ch. NR 665, as applicable, for the facilities covered by this policy. The policy shall also guarantee that once funds are needed, the insurer will be responsible for paying out funds, up to an amount equal to the face amount of the policy, upon the direction of the department, to such party or parties as the department specifies.
NR 661.0143(4)(e)
(e) After beginning partial or final closure under ch.
NR 664 or
665, as applicable, an owner or operator or any other authorized person may request reimbursements for closure expenditures by submitting itemized bills to the department. The owner or operator may request reimbursements only if the remaining value of the policy is sufficient to cover the maximum costs of closing the facility over its remaining operating life. Within 60 days after receiving bills for closure activities, the department will instruct the insurer to make reimbursements in such amounts as the department specifies in writing if the department determines that the expenditures are in accordance with the approved plan or otherwise justified. If the department has reason to believe that the maximum cost over the remaining life of the facility will be significantly greater than the face amount of the policy, the department may withhold reimbursement of such amounts as the department deems prudent until the department determines, in accordance with sub.
(8), that the owner or operator is no longer required to maintain financial assurance for the particular facility. If the department does not instruct the insurer to make such reimbursements, the department will provide to the owner or operator a detailed written statement of reasons.
NR 661.0143(4)(f)
(f) The owner or operator shall maintain the policy in full force and effect until the department consents to termination of the policy by the owner or operator as specified in par.
(j). Failure to pay the premium, without substitution of alternate financial assurance as specified in this section, will constitute a significant violation of this section warranting such remedy as the department deems necessary. Such violation will be deemed to begin upon receipt by the department of a notice of future cancellation, termination, or failure to renew due to nonpayment of the premium, rather than upon the date of expiration.
NR 661.0143(4)(g)
(g) Each policy shall contain a provision allowing assignment of the policy to a successor owner or operator. Such assignment may be conditional upon consent of the insurer, provided such consent is not unreasonably refused.
NR 661.0143(4)(h)
(h) The policy shall provide that the insurer may not cancel, terminate, or fail to renew the policy except for failure to pay the premium. The automatic renewal of the policy shall, at a minimum, provide the insured with the option of renewal at the face amount of the expiring policy. If the owner or operator fails to pay the premium, the insurer may elect to cancel, terminate, or fail to renew the policy by sending notice by certified mail to the owner or operator and the department. Cancellation, termination, or failure to renew may not occur, however, during the 120 days beginning with the date of receipt of the notice by both the department and the owner or operator, as evidenced by the return receipts. Cancellation, termination, or failure to renew may not occur and the policy will remain in full force and effect in the event that
, on or before the date of expiration
, any of the following occurs:
NR 661.0143(4)(h)2.
2. Conditional exclusion or interim status is lost, terminated, or revoked.
NR 661.0143(4)(h)3.
3. Closure is ordered by the department or a U.S. district court or other court of competent jurisdiction.
NR 661.0143(4)(h)4.
4. The owner or operator is named as debtor in a voluntary or involuntary bankruptcy proceeding under Title 11, U.S. Code.
NR 661.0143(4)(i)
(i) Whenever the current cost estimate increases to an amount greater than the face amount of the policy, the owner or operator, within 60 days after the increase, shall either cause the face amount to be increased to an amount at least equal to the current cost estimate and submit evidence of such increase to the department, or obtain other financial assurance as specified in this section to cover the increase. Whenever the current cost estimate decreases, the face amount may be reduced to the amount of the current cost estimate following written approval by the department.
NR 661.0143(4)(j)
(j) The department will give written consent to the owner or operator that the owner or operator may terminate the insurance policy when any of the following apply:
NR 661.0143(4)(j)1.
1. The owner or operator substitutes alternate financial assurance as specified in this section.
NR 661.0143(4)(j)2.
2. The department releases the owner or operator from the requirements of this section in accordance with sub.
(9).
NR 661.0143(5)(a)(a) An owner or operator may satisfy the requirements of this section by demonstrating that the owner or operator passes a financial test as specified in this subsection. To pass this test the owner or operator shall meet the criteria of either subd.
1. or
2.:
NR 661.0143(5)(a)1.a.
a. Two of the following 3 ratios: A ratio of total liabilities to net worth less than 2.0; a ratio of the sum of net income plus depreciation, depletion, and amortization to total liabilities greater than 0.1; and a ratio of current assets to current liabilities greater than 1.5.
NR 661.0143(5)(a)1.b.
b. Net working capital and tangible net worth each at least 6 times the sum of the current cost estimates and the current plugging and abandonment cost estimates.
NR 661.0143(5)(a)1.d.
d. Assets located in the United States amounting to at least 90 percent of total assets or at least 6 times the sum of the current cost estimates and the current plugging and abandonment cost estimates.
NR 661.0143(5)(a)2.a.
a. A current rating for the owner's or operator's most recent bond issuance of AAA, AA, A, or BBB as issued by Standard and Poor's or Aaa, Aa, A, or Baa as issued by Moody's.
NR 661.0143(5)(a)2.b.
b. Tangible net worth at least 6 times the sum of the current cost estimates and the current plugging and abandonment cost estimates.
NR 661.0143(5)(a)2.d.
d. Assets located in the United States amounting to at least 90 percent of total assets or at least 6 times the sum of the current cost estimates and the current plugging and abandonment cost estimates.
NR 661.0143(5)(b)
(b) The phrase “current cost estimates” as used in par.
(a) refers to the cost estimates required to be shown in paragraphs 1 to 4 of the letter from the owner's or operator's chief financial officer as required in s.
NR 661.0151 (5). The phrase “current plugging and abandonment cost estimates” as used in par.
(a) refers to the cost estimates required to be shown in paragraphs 1 to 4 of the letter from the owner's or operator's chief financial officer as required in
40 CFR 144.70 (f).
NR 661.0143(5)(c)
(c) To demonstrate that the owner or operator meets this test, the owner or operator shall submit all of the following to the department:
NR 661.0143(5)(c)2.
2. A copy of the independent certified public accountant's report on examination of the owner's or operator's financial statements for the latest completed fiscal year.
NR 661.0143(5)(c)3.
3. 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. that are different from the data in the audited financial statements referred to in subd
. 2. or any other audited financial statement or data filed with the U.S. Securities and Exchange Commission, 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 the comparison, and the reasons for any differences.
NR 661.0143(5)(d)
(d) The owner or operator may obtain an extension of the time allowed for submission of the documents specified in par.
(c) if the fiscal year of the owner or operator ends during the 90 days prior to September 1, 2020, and if the year-end financial statements for that fiscal year will be audited by an independent certified public accountant. The extension will end no later than 90 days after the end of the owner's or operator's fiscal year. To obtain the extension, the owner's or operator's chief financial officer shall send, by September 1, 2020, a letter to the department of each region in which the owner's or operator's facilities to be covered by the financial test are located. This letter from the chief financial officer shall contain all of the following:
