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 HistoryHistory: CR 05-032: cr. Register July 2006 No. 607, eff. 8-1-06. 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(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. 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
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.
(b) Any obligation of [insert owner or operator] under a workers’ compensation, disability benefits or unemployment compensation law or any similar law.
(c) Bodily injury to:
(1) An employee of [insert owner or operator] arising from, and in the course of, employment by [insert owner or operator]; or
(2) The spouse, child, parent, brother or sister of that employee as a consequence of, or arising from, and in the course of employment by [insert owner or operator]. This exclusion applies:
(A) Whether [insert owner or operator] may be liable as an employer or in any other capacity; and
(B) To any obligation to share damages with or repay another person who must pay damages because of the injury to persons identified in paragraphs (1) and (2).
(d) Bodily injury or property damage arising out of the ownership, maintenance, use or entrustment to others of any aircraft, motor vehicle or watercraft.
(e) Property damage to:
(1) Any property owned, rented or occupied by [insert owner or operator];
(2) Premises that are sold, given away or abandoned by [insert owner or operator] if the property damage arises out of any part of those premises;
(3) Property loaned to [insert owner or operator];
(4) Personal property in the care, custody or control of [insert owner or operator];
(5) That particular part of real property on which [insert owner or operator] or any contractors or subcontractors working directly or indirectly on behalf of [insert owner or operator] are performing operations, if the property damage arises out of these operations.
5. Guarantor agrees that if, at the end of any fiscal year before termination of this guarantee, the guarantor fails to meet the financial test criteria, guarantor must send within 90 days, by certified mail, notice to the Department, and if the facilities covered by this guarantee are in more than one state, to each state agency regulating hazardous waste or the EPA regional administrator if the facility is located in an unauthorized state, and to [owner or operator] that he intends to provide alternate liability coverage as specified in ss. NR 664.0147 and 665.0147, Wis. Adm. Code, or 40 CFR 264.147 and 265.147 or other state requirements that are equivalent to 40 CFR 264.147 and 265.147, as applicable, in the name of [owner or operator]. Within 120 days after the end of the fiscal year, the guarantor shall establish the liability coverage unless [owner or operator] has done so. 6. The guarantor agrees to notify the Department by certified mail of a voluntary or involuntary proceeding under title 11 (bankruptcy), U.S. code, naming guarantor as debtor, within 10 days after commencement of the proceeding.
