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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: http://dnr.wi.gov/topic/Waste/Financial.html, by E-mail: DNRWasteMaterials@wisconsin.gov, or by phone: (608) 266-2111.
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: http://dnr.wi.gov/topic/Waste/Financial.html, by E-mail: DNRWasteMaterials@wisconsin.gov, or by phone: (608) 266-2111.
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: http://dnr.wi.gov/topic/Waste/Financial.html, by E-mail: DNRWasteMaterials@wisconsin.gov, or by phone: (608) 266-2111.
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: http://dnr.wi.gov/topic/Waste/Financial.html, by E-mail: DNRWasteMaterials@wisconsin.gov, or by phone: (608) 266-2111.
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: http://dnr.wi.gov/topic/Waste/Financial.html, by E-mail: DNRWasteMaterials@wisconsin.gov, or by phone: (608) 266-2111.
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: http://dnr.wi.gov/topic/Waste/Financial.html, by E-mail: DNRWasteMaterials@wisconsin.gov, or by phone: (608) 266-2111.
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
[Fill in Alternative I if the criteria of s. NR 664.0147 (6) (a) 1. or 665.0147 (6) (a) 1., Wis. Adm. Code, are used. Fill in Alternative II if the criteria of s. NR 664.0147 (6) (a) 2. or 665.0147 (6) (a) 2., Wis. Adm. Code, are used.]
ALTERNATIVE I
1. Amount of annual aggregate liability coverage to be demonstrated $ ____.
*2. Current assets $ ____.
*3. Current liabilities $ ____.
4. Net working capital (line 2 minus line 3) $ ____.
*5. Tangible net worth $ ____.
*6. If less than 90% of assets are located in the U.S., give total U.S. assets $ ____.
7. Is line 5 at least $10 million? (Yes/No) ____.
8. Is line 4 at least 6 times line 1? (Yes/No) ____.
9. Is line 5 at least 6 times line 1? (Yes/No) ____.
*10. Are at least 90% of assets located in the U.S.? (Yes/No) ____. If not, complete line 11.
11. Is line 6 at least 6 times line 1? (Yes/No) ____.
ALTERNATIVE II
1. Amount of annual aggregate liability coverage to be demonstrated $ ____.
2. Current bond rating of most recent issuance and name of rating service ____ ____.
3. Date of issuance of bond ____ ____.
4. Date of maturity of bond ____ ____.
*5. Tangible net worth $ ____.
*6. Total assets in U.S. (required only if less than 90% of assets are located in the U.S.) $ ____.
7. Is line 5 at least $10 million? (Yes/No) ____.
8. Is line 5 at least 6 times line 1? ____.
9. Are at least 90% of assets located in the U.S.? If not, complete line 10. (Yes/No) ____.
10. Is line 6 at least 6 times line 1? (Yes/No) ____.
I hereby certify that the wording of this letter is identical to the wording specified in s. NR 664.0151 (7), Wis. Adm. Code, as such rules were constituted on the date shown immediately below.
[Signature]____________________
[Name]____________________
[Title]____________________
[Date]____________________
NR 664.0151(8) (8)A guarantee, as specified in s. NR 664.0147 (7) or 665.0147 (7), must be worded as follows, except that instructions in brackets are to be replaced with the relevant information and the brackets deleted:
Guarantee for Liability Coverage
Guarantee made this [date] by [name of guaranteeing entity], a business corporation organized under the laws of [if incorporated within the United States insert “the State of ____" and insert name of State; if incorporated outside the United States insert the name of the country in which incorporated, the principal place of business within the United States, and the name and address of the registered agent in the State of the principal place of business], herein referred to as guarantor. This guarantee is made on behalf of [owner or operator] of [business address], which is one of the following: “our subsidiary;" “a subsidiary of [name and address of common parent corporation], of which guarantor is a subsidiary;" or “an entity with which guarantor has a substantial business relationship, as defined in s. NR 664.0141 (8) or 665.0141 (8), Wis. Adm. Code", to any and all third parties who have sustained or may sustain bodily injury or property damage caused by [sudden and/or nonsudden] accidental occurrences arising from operation of the facility(ies) covered by this guarantee.
Recitals
1. Guarantor meets or exceeds the financial test criteria and agrees to comply with the reporting requirements for guarantors as specified in ss. NR 664.0147 (7) and 665.0147 (7), Wis. Adm. Code.
2. [Owner or operator] owns or operates the following hazardous waste management facility(ies) covered by this guarantee: [List for each facility: EPA identification number, name and address; and if guarantor is incorporated outside the United States list the name and address of the guarantor's registered agent in each State.] This corporate guarantee satisfies RCRA third-party liability requirements for [insert “sudden" or “nonsudden" or “both sudden and nonsudden"] accidental occurrences in above-named owner or operator facilities for coverage in the amount of [insert dollar amount] for each occurrence and [insert dollar amount] annual aggregate.
3. For value received from [owner or operator], guarantor guarantees to any and all third parties who have sustained or may sustain bodily injury or property damage caused by [sudden and/or nonsudden] accidental occurrences arising from operations of the facility(ies) covered by this guarantee that in the event that [owner or operator] fails to satisfy a judgment or award based on a determination of liability for bodily injury or property damage to third parties caused by [sudden and/or nonsudden] accidental occurrences, arising from the operation of the above-named facilities, or fails to pay an amount agreed to in settlement of a claim arising from or alleged to arise from the injury or damage, the guarantor will satisfy the judgment(s), award(s) or settlement agreement(s) up to the limits of coverage identified above.
4. The obligation does not apply to any of the following:
(a) Bodily injury or property damage for which [insert owner or operator] is obligated to pay damages by reason of the assumption of liability in a contract or agreement. This exclusion does not apply to liability for damages that [insert owner or operator] would be obligated to pay in the absence of the contract or agreement.
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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.