NR 664.0147(6)(a)2.c. c. Tangible net worth at least 6 times the amount of liability coverage to be demonstrated by this test.
NR 664.0147(6)(a)2.d. d. Assets in the United States amounting to either:
1) At least 90% of the owner or operator's total assets.
2) At least 6 times the amount of liability coverage to be demonstrated by this test.
NR 664.0147(6)(b) (b) The phrase “amount of liability coverage" as used in par. (a) refers to the annual aggregate amounts for which coverage is required under subs. (1) and (2).
NR 664.0147(6)(c) (c) To demonstrate that the owner or operator meets this test, the owner or operator shall submit the following 3 items to the department:
NR 664.0147(6)(c)1. 1. A letter signed by the owner's or operator's chief financial officer and worded as specified in s. NR 664.0151 (7).
NR 664.0147(6)(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 664.0147(6)(c)3. 3. A special report from the owner's or operator's independent certified public accountant to the owner or operator stating all of the following:
NR 664.0147(6)(c)3.a. a. The independent certified public accountant has compared the data which the letter from the chief financial officer specifies as having been derived from the independently audited, year-end financial statements for the latest fiscal year with the amounts in the financial statements.
NR 664.0147(6)(c)3.b. b. In connection with that procedure, no matters came to the attention of the independent certified public accountant which would provide cause to believe that the specified data should be adjusted.
NR 664.0147(6)(d) (d) An owner or operator of a new facility shall submit the items specified in par. (c) to the department at least 60 days before the date on which hazardous waste is first received for treatment, storage or disposal.
NR 664.0147(6)(e) (e) After the initial submission of items specified in par. (c), the owner or operator shall send updated information to the department within 90 days after the close of each succeeding fiscal year. This information shall consist of all 3 items specified in par. (c).
NR 664.0147(6)(f) (f) If the owner or operator no longer meets the requirements of par. (a), the owner or operator shall obtain insurance, a letter of credit, a surety bond, a trust fund or a guarantee for the entire amount of required liability coverage as specified in this section. Evidence of liability coverage shall be submitted to the department within 90 days after the end of the fiscal year for which the year-end financial data show that the owner or operator no longer meets the test requirements.
NR 664.0147(6)(g) (g) The department may disallow use of this test on the basis of qualifications in the opinion expressed by the independent certified public accountant in the accountant's report on examination of the owner's or operator's financial statements (see par. (c) 2.). An adverse opinion or a disclaimer of opinion will be cause for disallowance. The department will evaluate other qualifications on an individual basis. The owner or operator shall provide evidence of insurance for the entire amount of required liability coverage as specified in this section within 30 days after notification of disallowance.
NR 664.0147(7) (7) Guarantee for liability coverage.
NR 664.0147(7)(a) (a) Subject to par. (b), an owner or operator may meet the requirements of this section by obtaining a written guarantee, referred to as “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 subs. (6) (a) to (f). The wording of the guarantee shall be identical to the wording specified in s. NR 664.0151 (8). A certified copy of the guarantee shall accompany the items sent to the department as specified in sub. (6) (c). One of these items shall be the letter from the guarantor's chief financial officer. If the guarantor's parent corporation is also the parent corporation of the owner or operator, this letter 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 664.0147(7)(a)1. 1. If the owner or operator fails to satisfy a judgment based on a determination of liability for bodily injury or property damage to third parties caused by sudden or nonsudden accidental occurrences (or both as the case may be), arising from the operation of facilities covered by this corporate guarantee, or fails to pay an amount agreed to in settlement of claims arising from or alleged to arise from the injury or damage, the guarantor will do so up to the limits of coverage. The guarantee shall remain in force unless the guarantor sends notice of cancellation by certified mail to the owner or operator and to the department. This guarantee may not be terminated unless and until the department approves alternate liability coverage complying with this section.
NR 664.0147(7)(b)1.1. In the case of corporations incorporated in the United States, a guarantee may be used to satisfy the requirements of this section only if the attorneys general or insurance commissioners of the following states have submitted a written statement to the department that a guarantee executed as described in this section and s. NR 664.0151 (8), 40 CFR 264.151(h)(2) or other state requirements that are equivalent to 40 CFR 264.151(h)(2) is a legally valid and enforceable obligation in that state:
NR 664.0147(7)(b)1.a. a. The state in which the guarantor is incorporated.
NR 664.0147(7)(b)1.b. b. Each state in which a facility covered by the guarantee is located.
NR 664.0147(7)(b)2. 2. In the case of corporations incorporated outside the United States, a guarantee may be used to satisfy the requirements of this section only if all of the following conditions are met:
NR 664.0147(7)(b)2.a. a. The non-U.S. corporation has identified a registered agent for service of process in each state in which a facility covered by the guarantee is located and in the state in which it has its principal place of business.
NR 664.0147(7)(b)2.b. b. The attorney general or insurance commissioner of each state in which a facility covered by the guarantee is located and the state in which the guarantor corporation has its principal place of business, has submitted a written statement to the department that a guarantee executed as described in this section and s. NR 664.0151 (8), 40 CFR 264.151(h)(2) or other state requirements that are equivalent to 40 CFR 264.151(h)(2) is a legally valid and enforceable obligation in that state.
NR 664.0147(8) (8) Letter of credit for liability coverage.
NR 664.0147(8)(a) (a) An owner or operator may satisfy the requirements of this section by obtaining an irrevocable letter of credit that conforms to the requirements of this subsection and submitting a copy of the letter of credit to the department.
NR 664.0147(8)(b) (b) The financial institution issuing the letter of credit 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 664.0147(8)(c) (c) The wording of the letter of credit shall be identical to the wording specified in s. NR 664.0151 (11).
NR 664.0147(9) (9) Surety bond for liability coverage.
NR 664.0147(9)(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 a copy of the bond to the department.
NR 664.0147(9)(b) (b) The surety company issuing the bond shall be among those listed as acceptable sureties on federal bonds in the most recent circular 570 of the U.S. department of the treasury.
NR 664.0147(9)(c) (c) The wording of the surety bond shall be identical to the wording specified in s. NR 664.0151 (12).
NR 664.0147(9)(d) (d) A surety bond may be used to satisfy the requirements of this section only if the attorneys general or insurance commissioners of the following states have submitted a written statement to the department that a surety bond executed as described in this section and s. NR 664.0151 (12), 40 CFR 264.151(1) or other state requirements that are equivalent to 40 CFR 264.151(l) is a legally valid and enforceable obligation in that state:
NR 664.0147(9)(d)1. 1. The state in which the surety is incorporated.
NR 664.0147(9)(d)2. 2. Each state in which a facility covered by the surety bond is located.
NR 664.0147(10) (10) Trust fund for liability coverage.
NR 664.0147(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 664.0147(10)(b) (b) 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 664.0147(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 purposes of this subsection, “the full amount of the liability coverage to be provided" means the amount of coverage for sudden or nonsudden 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 664.0147(10)(d) (d) The wording of the trust fund shall be identical to the wording specified in s. NR 664.0151 (13).
NR 664.0147 History History: CR 05-032: cr. Register July 2006 No. 607, eff. 8-1-06; CR 16-007: am. (5) Register July 2017 No. 739, eff. 8-1-17.
NR 664.0148 NR 664.0148Incapacity of owners or operators, guarantors or financial institutions.
NR 664.0148(1)(1)An owner or operator shall notify the department by certified mail of the commencement of a voluntary or involuntary bankruptcy proceeding under 11 USC, naming the owner or operator as debtor, within 10 days after commencement of the proceeding.
NR 664.0148(2) (2)An owner or operator who fulfills the requirements of s. NR 664.0143, 664.0145 or 664.0147 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 the instruments. The owner or operator shall establish other financial assurance or liability coverage within 60 days after such an event.
NR 664.0148 History History: CR 05-032: cr. Register July 2006 No. 607, eff. 8-1-06.
NR 664.0151 NR 664.0151Wording of the instruments.
NR 664.0151(1)(a) (a) A trust agreement for a trust fund, as specified in s. NR 664.0143 (1), 664.0145 (1), 665.0143 (1) or 665.0145 (1), must be identical to the wording of Form 4430-022 Trust Agreement.
NR 664.0151 Note Note: Form 4430-022 may be obtained from:
NR 664.0151 Note http://dnr.wi.gov/topic/Waste/Financial.html, or by E-mail: waste.management@dnr.state.wi.us, phone (608) 266-2111 or Fax (608) 267-2768.
NR 664.0151(1)(b) (b) The following is an example of the certification of acknowledgment which must accompany the trust agreement for a trust fund as specified in s. NR 664.0143 (1), 664.0145 (1), 665.0143 (1) or 665.0145 (1).
State of __________
County of ________
On this [date], before me personally came [owner or operator] to me known, who, being by me duly sworn, did depose and say that she/he resides at [address], that she/he is [title] of [corporation], the corporation described in and which executed the above instrument; that she/he knows the seal of said corporation; that the seal affixed to such instrument is such corporate seal; that it was so affixed by order of the Board of Directors of said corporation, and that she/he signed her/his name thereto by like order.
___________________
[Signature of Notary Public]
NR 664.0151(2) (2)A surety bond guaranteeing payment into a trust fund, as specified in s. NR 664.0143 (2), 664.0145 (2), 665.0143 (2) or 665.0145 (2), must be identical to the wording of Form 4430-023 Financial Guarantee Bond.
NR 664.0151 Note Note: Form 4430-023 may be obtained from:
NR 664.0151 Note http://dnr.wi.gov/topic/Waste/Financial.html, or by E-mail: waste.management@dnr.state.wi.us, phone (608) 266-2111 or Fax (608) 267-2768.
NR 664.0151(3) (3)A surety bond guaranteeing performance of closure or long-term care or both, as specified in s. NR 664.0143 (3) or 664.0145 (3), must be worded identical to the wording of Form 4430-024 Performance Bond.
NR 664.0151 Note Note: Form 4430-024 may be obtained from:
NR 664.0151 Note http://dnr.wi.gov/topic/Waste/Financial.html, or by E- mail at waste.management@dnr.state.wi.us, phone (608) 266-2111 or Fax (608) 267-2768.
NR 664.0151(4) (4)A letter of credit, as specified in s. NR 664.0143 (4), 664.0145 (4), 665.0143 (3) or 665.0145 (3), must be worded identical to the wording of Form 4430-025 Irrevocable Letter of Credit.
NR 664.0151 Note Note: Form 4430-025 may be obtained from:
NR 664.0151 Note http://dnr.wi.gov/topic/Waste/Financial.html, or by E-mail: waste.management@dnr.state.wi.us, phone (608) 266-2111 or Fax (608) 267-2768.
NR 664.0151(5) (5)A certificate of insurance, as specified in s. NR 664.0143 (5), 664.0145 (5), 665.0143 (4) or 665.0145 (4), must be identical to the wording of Form 4430-026 Certificate of Insurance for Closure and Long-Term Care.
NR 664.0151 Note Note: Form 4430-026 may be obtained from:
NR 664.0151 Note http://dnr.wi.gov/topic/Waste/Financial.html, or by E-mail: waste.management@dnr.state.wi.us, phone (608) 266-2111 or Fax (608) 267-2768.
NR 664.0151(6)(a)(a) An escrow agreement, as specified in s. NR 664.0143 (8), 664.0145 (8), 665.0143 (7) or 665.0145 (7), must be identical to the wording of Form 4430-027 Escrow Agreement.
NR 664.0151 Note Note: Form 4430-027 may be obtained from:
NR 664.0151 Note http://dnr.wi.gov/topic/Waste/Financial.html, or by E-mail: waste.management@dnr.state.wi.us, phone (608) 266-2111 or Fax (608) 267-2768.
NR 664.0151(6)(b) (b) The following is an example of the certification of acknowledgment which must accompany the escrow account specified in s. NR 664.0143 (8), 664.0145 (8), 665.0143 (7) or 665.0145 (7):
State of ________
County of _____
On this [date], before me personally came [owner or operator] to me known, who, being by me duly sworn, did depose and say that she/he resides at [address], that she/he is [title] of [corporation], the corporation described in and which executed the above instrument; that she/he knows the seal of said corporation; that the seal affixed to such instrument is such corporate seal; that it was so affixed by order of the Board of Directors of said corporation, and that she/he signed her/his name thereto by like order.
___________________
[Signature of Notary Public]
NR 664.0151(7) (7)A letter from the chief financial officer, as specified in s. NR 664.0147 (6) or 665.0147 (6), shall be worded as follows, except that instructions in brackets are to be replaced with the relevant information and the brackets deleted:
Letter from Chief Financial Officer
[For facilities demonstrating financial responsibility through the financial test, address to Wisconsin Department of Natural Resources, the state agency of other affected authorized states and the administrator of affected EPA regions if the facilities are in unauthorized states.]
I am the chief financial officer of [firm's name and address]. This letter is in support of the use of the financial test to demonstrate financial responsibility for liability coverage as specified in subch. H. of ch. NR 664 and subch. H. of ch. NR 665, Wis. Adm. Code.
[Fill out the following paragraphs regarding facilities and liability coverage. If there are no facilities that belong in a particular paragraph, write “None" in the space indicated. For each facility, include its EPA Identification Number, name and address].
The firm identified above is the owner or operator of the following facilities for which liability coverage for [insert “sudden" or “nonsudden" or “both sudden and nonsudden"] accidental occurrences is being demonstrated through the financial test specified in subch. H. of ch. NR 664 and subch. H of ch. NR 665, Wis. Adm. Code:____
The firm identified above guarantees, through the guarantee specified in subch. H. of ch. NR 664 and subch. H. of ch. NR 665, Wis. Adm. Code, liability coverage for [insert “sudden" or “nonsudden" or “both sudden and nonsudden"] accidental occurrences at the following facilities owned or operated by the following: ____. The firm identified above is [insert one or more: (1) The direct or higher-tier parent corporation of the owner or operator; (2) owned by the same parent corporation as the parent corporation of the owner or operator, and receiving the following value in consideration of this guarantee ____; or (3) engaged in the following substantial business relationship with the owner or operator ____, and receiving the following value in consideration of this guarantee ____]. [Attach a written description of the business relationship or a copy of the contract establishing such relationship to this letter.]
This firm [insert “is required" or “is not required"] to file a Form 10K with the Securities and Exchange Commission (SEC) for the latest fiscal year.
The fiscal year of this firm ends on [month, day]. The figures for the following items marked with an asterisk are derived from this firm's independently audited, year-end financial statements for the latest completed fiscal year, ended [date].
Part A. Liability Coverage for Accidental Occurrences
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Published under s. 35.93, Stats. Updated on the first day of each month. Entire code is always current. The Register date on each page is the date the chapter was last published.