Section NR 665.0145 - Financial assurance for long-term care By June 1, 1984, an owner or operator of a facility with a hazardous waste disposal unit shall establish financial assurance for long-term care of the disposal unit or units.
(1) LONG-TERM CARE TRUST FUND. (a) An owner or operator may satisfy the requirements of this section by establishing a long-term care trust fund which 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 which has the authority to act as a trustee and whose trust operations are regulated and examined by a federal or state agency.(b) The wording of the trust agreement shall be identical to the wording on the department form specified in s. NR 664.0151(1) (a), and the trust agreement shall be accompanied by a formal certification of acknowledgment as specified in s. NR 664.0151(1) (b). Schedule A of the trust agreement shall be updated within 60 days after a change in the amount of the current long-term care cost estimate covered by the agreement.(c) Payments into the trust fund shall be made annually by the owner or operator over the 20 years beginning on June 1, 1984 or over the remaining operating life of the facility as estimated in the closure plan, whichever period is shorter. For the purposes of this section, this period is referred to as the "pay-in period." The payments into the long-term care trust fund shall be made as follows: 1. The first payment shall be made by June 1, 1984, except as provided in par. (e). The first payment shall be at least equal to the current long-term care cost estimate, except as provided in sub. (8), divided by the number of years in the pay-in period.2. Subsequent payments shall be made no later than 30 days after each anniversary date of the first payment. The amount of each subsequent payment shall be determined by this formula: Click to view image
where CE is the current long-term care cost estimate, CV is the current value of the trust fund and Y is the number of years remaining in the pay-in period.
(d) The owner or operator may accelerate payments into the trust fund or the owner or operator may deposit the full amount of the current long-term care cost estimate at the time the fund is established. However, the owner or operator shall maintain the value of the fund at no less than the value that the fund would have if annual payments were made as specified in par. (c).(e) If the owner or operator establishes a long-term care trust fund after having used one or more alternate mechanisms specified in this section, the first payment shall be in at least the amount that the fund would contain if the trust fund were established initially and annual payments made as specified in par. (c).(f) After the pay-in period is completed, whenever the current long-term care cost estimate changes during the operating life of the facility, 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 long-term care cost estimate, or obtain other financial assurance as specified in this section to cover the difference.(g) During the operating life of the facility, if the value of the trust fund is greater than the total amount of the current long-term care cost estimate, the owner or operator may submit a written request to the department for release of the amount in excess of the current long-term care cost estimate.(h) 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 long-term care cost estimate covered by the trust fund.(i) Within 60 days after receiving a request from the owner or operator for release of funds as specified in par. (g) or (h), the department will instruct the trustee to release to the owner or operator the funds as the department specifies in writing.(j) During the period of long-term care, the department may approve a release of funds if the owner or operator demonstrates to the department that the value of the trust fund exceeds the remaining cost of long-term care.(k) An owner or operator or any other person authorized to conduct long-term care may request reimbursements for long-term care expenditures by submitting itemized bills to the department. Within 60 days after receiving bills for long-term care 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 long-term care expenditures are in accordance with the approved long-term care plan or otherwise justified. If the department does not instruct the trustee to make the reimbursements, the department will provide the owner or operator with a detailed written statement of reasons.(l) The department will agree to termination of the trust when one of the following applies: 1. An owner or operator substitutes alternate financial assurance as specified in this section.2. The department releases the owner or operator from the requirements of this section in accordance with sub. (10).(2) SURETY BOND GUARANTEEING PAYMENT INTO A LONG TERM CARE TRUST FUND. (a) An owner or operator may satisfy the requirements of this section by obtaining a surety bond which 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.(b) The wording of the surety bond shall be identical to the wording on the department form specified in s. NR 664.0151(2).(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 shall be deposited by the surety directly into the standby trust fund in accordance with instructions from the department. This standby trust fund must meet the requirements specified in sub. (1) except for all of the following: 1. An originally signed duplicate of the trust agreement must be submitted to the department with the surety bond.2. Until the standby trust fund is funded pursuant to the requirements of this section, all of the following are not required:a. Payments into the trust fund as specified in sub. (1).b. Updating of Schedule A of the trust agreement (see Form 4430-022) to show current closure cost estimates.c. Annual valuations as required by the trust agreement.d. Notices of nonpayment as required by the trust agreement.(d) The bond must guarantee that the owner or operator will do any of the following:1. Fund the standby trust fund in an amount equal to the penal sum of the bond before the beginning of final closure of the facility.2. Fund the standby trust fund in an amount equal to the penal sum within 15 days after an administrative order to begin final closure issued by the department becomes final, or within 15 days after an order to begin final closure is issued.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.(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.(f) The penal sum of the bond shall be in an amount at least equal to the current long-term care cost estimate, except as provided in sub. (8).(g) Whenever the current long-term care 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 long-term care cost estimate and submit evidence of the increase to the department, or obtain other financial assurance as specified in this section to cover the increase. Whenever the current long-term care cost estimate decreases, the penal sum may be reduced to the amount of the current long-term care cost estimate following written approval by the department.(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. Not less than 30 days prior to the expiration of the 120-day notice period, the owner shall deliver to the department a replacement bond or other proof of financial responsibility under this section, in the absence of which all storage, treatment or disposal operations shall immediately cease and the bond shall remain in effect as long as any obligation of the owner remains for long-term care(i) The owner or operator may cancel the bond if the department has given prior written consent based on the receipt of evidence of alternate financial assurance as specified in this section.(3) LONG-TERM CARE LETTER OF CREDIT.(a) An owner or operator may satisfy the requirements of this section by obtaining an irrevocable letter of credit which conforms to the requirements of this subsection and submitting the letter to the department. The issuing institution shall be an entity which has the authority to issue letters of credit and whose letter-of-credit operations are regulated and examined by a federal or state agency.(b) The wording of the letter of credit shall be identical to the wording on the department form specified in s. NR 664.0151(4).(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, name and address of the facility, and the amount of funds assured for long-term care of the facility by the letter of credit.(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.(f) The letter of credit shall be issued in an amount at least equal to the current long-term care cost estimate, except as provided in sub. (8).(g) Whenever the current long-term care cost estimate increases to an amount greater than the amount of the credit during the operating life of the facility, 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 long-term care cost estimate and submit evidence of the increase to the department, or obtain other financial assurance as specified in this section to cover the increase. Whenever the current long-term care cost estimate decreases during the operating life of the facility, the amount of the credit may be reduced to the amount of the current long-term care cost estimate following written approval by the department.(h) During the period of long-term care, the department may approve a decrease in the amount of the letter of credit if the owner or operator demonstrates to the department that the amount exceeds the remaining cost of long-term care.(i) Following a determination by the department that the owner or operator has failed to perform long-term care in accordance with the approved long-term care plan and other license requirements, the department may draw on the letter of credit.(j) If the owner or operator does not establish alternate financial assurance as specified in this section and obtain written approval of the 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 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 the assurance from the department.(l) The department will authorize the release of the letter of credit when any of the following apply: 1. An owner or operator substitutes alternate financial assurance as specified in this section.2. The department releases the owner or operator from the requirements of this section in accordance with sub. (10).(4) LONG-TERM CARE INSURANCE.(a) An owner or operator may satisfy the requirements of this section by obtaining long-term care insurance which conforms to the requirements of this subsection and submitting a certificate of the insurance to the department. By June 1, 1984 the owner or operator shall submit to the department a letter from an insurer stating that the insurer is considering issuance of long-term care insurance conforming to the requirements of this subsection to the owner or operator. By August 30, 1984, the owner or operator shall submit the certificate of insurance to the department or establish other financial assurance as specified in this section. 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. The department, after conferring with the Wisconsin insurance commissioner, shall determine the acceptability of a surplus lines or captive insurance company to provide coverage for proof of financial responsibility. The department shall ask the insurance commissioner to provide a financial analysis of the insurer including a recommendation as to the insurer's ability to provide the required coverage. The department may require a periodic review of the acceptability of a surplus lines or captive insurance company.(b) The wording of the certificate of insurance shall be identical to the wording on the department form specified in s. NR 664.0151(5).(c) The long-term care insurance policy shall be issued for a face amount at least equal to the current long-term care cost estimate, except as provided in sub. (8). 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.(d) The long-term care insurance policy shall guarantee that funds will be available to provide long-term care of the facility whenever the long-term care period begins. The policy shall also guarantee that once long-term care begins 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 the party or parties as the department specifies.(e) An owner or operator or any other person authorized to perform long-term care may request reimbursement for long-term care expenditures by submitting itemized bills to the department. Within 60 days after receiving bills for long-term care activities, the department will instruct the insurer to make reimbursements in those amounts as the department specifies in writing, if the department determines that the long-term care expenditures are in accordance with the approved long-term care plan or otherwise justified. If the department does not instruct the insurer to make the reimbursements, the department will provide a detailed written statement of reasons.(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. (k). Failure to pay the premium, without substitution of alternate financial assurance as specified in the section, will constitute a significant violation of this chapter, warranting a remedy as the department deems necessary. The 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.(g) Each policy shall contain a provision allowing assignment of the policy to a successor owner or operator. The assignment may be conditional upon consent of the insurer, provided the consent is not unreasonably refused.(h) The policy shall provide that the insurer may not cancel, terminate or fail to renew the policy unless a replacement insurance policy or other proof of financial responsibility under this section is provided to the department by the owner or operator. 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 insurer elects to cancel, terminate or fail to renew the policy, the insurer shall provide notice by certified mail to the owner or operator and the department not less than 120 days prior to the proposed cancellation date. 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 apply: 1. The department deems the facility abandoned.2. Interim license is denied, suspended or revoked.3. Closure is ordered by the department or a U.S. district court or other court of competent jurisdiction.4. The owner or operator is named as debtor in a voluntary or involuntary bankruptcy proceeding under 11 USC.5. The premium due is paid.(i) Whenever the current long-term care cost estimate increases to an amount greater than the face amount of the policy during the operating life of the facility, 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 long-term care cost estimate and submit evidence of the increase to the department, or obtain other financial assurance as specified in this section to cover the increase. Whenever the current long-term care cost estimate decreases during the operating life of the facility, the face amount may be reduced to the amount of the current long-term care cost estimate following written approval by the department.(j) Commencing on the date that liability to make payments pursuant to the policy accrues, the insurer will thereafter annually increase the face amount of the policy. The increase shall be equivalent to the face amounts of the policy, less any payments made, multiplied by an amount equivalent to 85 percent of the most recent investment rate or of the equivalent coupon-issue yield announced by the U.S. treasury for 26-week treasury securities.(k) The department will give written consent to the owner or operator that the department may terminate the insurance policy when any of the following apply:1. An owner or operator substitutes alternate financial assurance as specified in this section.2. The department releases the owner or operator from the requirements of this section in accordance with sub. (10).(5) NET WORTH TEST FOR LONG-TERM CARE. (a) An owner or operator of a disposal facility may use the net worth test to provide financial responsibility if all of the following are met:1. Only a company that meets the definition in s. 289.41(1) (b), Stats., may use the net worth method of providing proof of financial responsibility.2. The owner shall comply with the net worth test requirements of s. 289.41(4), (6), and (7), Stats., and the minimum security requirements of s. 289.41(9), Stats., whichever are applicable. The updated net worth test information required under s. 289.41(4), Stats., shall be submitted annually to the department within 90 days after the close of the company's fiscal year.(b) For companies with more than one facility, the total cost of compliance for all facilities shall be used to determine the net worth to closure and long-term care cost ratio.(6) LONG TERM CARE DEPOSIT WITH THE DEPARTMENT. An owner may deposit cash, certificates of deposit or U.S. government securities with the department. The deposit must be accompanied by a signed duplicate original of Form 4430-028 as specified in s. NR 664.0151(14). The amount of the deposit shall be determined according to s. NR 665.0144 and shall be submitted as part of an interim license application. Cash deposits placed with the department shall be segregated and invested in an interest bearing account. All interest payments shall be accumulated in the account. The department shall have the right to use part or all of the funds to carry out the long-term care requirements of the written long-term care plan or the applicable requirements in s. NR 665.0118 if the owner fails to do so.(7) ESCROW ACCOUNT. (a) An owner or operator may satisfy the requirements of this section by establishing a long-term care escrow account which conforms to the requirements of this subsection and submitting an originally signed duplicate of the escrow agreement to the department. An owner or operator of a new facility shall submit the originally signed duplicate of the escrow agreement to the department at least 60 days before the date on which hazardous waste is first received for disposal. The escrow agent shall be an entity which has the authority to act as an escrow agent and the escrow account shall be established with a bank or financial institution which is regulated and examined by a federal or state agency.(b) The wording of the escrow agreement shall be identical to the wording on the department form specified in s. NR 664.0151(6) (a), and the escrow agreement shall be accompanied by a formal certification of acknowledgment as specified in s. NR 664.0151(6) (b). Schedule A of the escrow agreement shall be updated within 60 days after a change in the amount of the current long-term care cost estimate covered by the agreement.(c) Payments into the escrow account shall be made annually by the owner or operator over the term of the interim license and over the remaining operating life of the facility as estimated in the closure plan. For the purposes of this section, this period is referred to as the "pay-in period." The payments into the long-term care escrow account shall be made as follows:1. For a new facility, the first payment shall be made before the initial receipt of hazardous waste for disposal. A receipt from the escrow agent for this payment shall be submitted by the owner or operator to the department before this initial receipt of hazardous waste. The first payment shall be at least equal to the current long-term care cost estimate, except as provided in sub. (8), divided by the number of years in the pay-in period. Subsequent payments shall be made no later than 30 days after each anniversary date of the first payment. The amount of each subsequent payment shall be determined by this formula: Click to view image
where CE is the current long-term care cost estimate, CV is the current value of the escrow account and Y is the number of years remaining in the pay-in period.
2. If an owner or operator establishes a escrow account as specified in this subsection, and the value of that escrow account is less than the current long-term care cost estimate when an interim license is awarded for the facility, the amount of the current long-term care cost estimate still to be paid into the account shall be paid in over the pay-in period as defined in the introduction to this paragraph. Payments shall continue to be made no later than 30 days after each anniversary date of the first payment. The amount of each payment shall be determined by this formula: Click to view image
where CE is the current long-term care cost estimate, CV is the current value of the escrow account and Y is the number of years remaining in the pay-in period.
(d) The owner or operator may accelerate payments into the escrow account or may deposit the full amount of the current long-term care cost estimate at the time the account is established. However, the owner or operator shall maintain the value of the account at no less than the value that the account would have if annual payments were made as specified in par. (c).(e) If the owner or operator establishes a long-term care escrow account after having used one or more alternate mechanisms specified in this section, the first payment shall be in at least the amount that the account would contain if the escrow account were established initially and annual payments made as specified in par. (c)(f) After the pay-in period is completed, whenever the current long-term care cost estimate changes during the operating life of the facility, the owner or operator shall compare the new estimate with the escrow agent's most recent annual valuation of the escrow account. If the value of the account 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 account so that its value after this deposit at least equals the amount of the current long-term care cost estimate, or obtain other financial assurance as specified in this section to cover the difference.(g) During the operating life of the facility, if the value of the escrow account is greater than the total amount of the current long-term care cost estimate, the owner or operator may submit a written request to the department for release of the amount in excess of the current long-term care cost estimate.(h) If an owner or operator substitutes other financial assurance as specified in this section for all or part of the escrow account, the owner or operator may submit a written request to the department for release of the amount in excess of the current long-term care cost estimate covered by the escrow account.(i) Within 60 days after receiving a request from the owner or operator for release of funds as specified in par. (g) or (h), the department will instruct the escrow agent to release to the owner or operator funds as the department specifies in writing.(j) During the period of long-term care, the department may approve a release of funds if the owner or operator demonstrates to the department that the value of the escrow account exceeds the remaining cost of long-term care.(k) An owner or operator or any other person authorized to conduct long-term care may request reimbursements for long-term care expenditures by submitting itemized bills to the department. Within 60 days after receiving bills for long-term care activities, the department will instruct the escrow agent to make reimbursements in those amounts as the department specifies in writing, if the department determines that the long-term care expenditures are in accordance with the approved long-term care plan or otherwise justified. If the department does not instruct the escrow agent to make the reimbursements, the department will provide the owner or operator with a detailed written statement of reasons.(l) The department will agree to termination of the escrow account when one of the following applies: 1. An owner or operator substitutes alternate financial assurance as specified in this section.2. The department releases the owner or operator from the requirements of this section in accordance with sub. (10).(8) USE OF MULTIPLE FINANCIAL MECHANISMS. An owner or operator may satisfy the requirements of this section by establishing more than one financial mechanism per facility. These mechanisms are limited to trust funds, surety bonds guaranteeing payment, deposits with the department, escrow accounts, letters of credit and insurance. The mechanisms shall be as specified in subs. (1) to (4), (6) and (7) except that it is the combination of mechanisms, rather than the single mechanism, which shall provide financial assurance for an amount at least equal to the current long-term care cost estimate. The department may use any or all of the mechanisms to provide for long-term care of the facility.(9) USE OF A FINANCIAL MECHANISM FOR MULTIPLE FACILITIES. An owner or operator may use a financial assurance mechanism specified in this section to meet the requirements of this section for more than one facility. Evidence of financial assurance submitted to the department shall include a list showing, for each facility, the EPA identification number, name, address and the amount of funds for long-term care assured by the mechanism. If the facilities covered by the mechanism are in more than one state, identical evidence of financial assurance shall be submitted to and maintained with the state agency regulating hazardous waste or with the appropriate EPA regional administrator if the facilities are located in unauthorized states. The amount of funds available through the mechanism shall be no less than the sum of funds that would be available if a separate mechanism had been established and maintained for each facility. In directing funds available through the mechanism for long-term care of any of the facilities covered by the mechanism, the department may direct only the amount of funds designated for that facility, unless the owner or operator agrees to the use of additional funds available under the mechanism.(10) RELEASE OF THE OWNER OR OPERATOR FROM THE REQUIREMENTS OF THIS SECTION. Within 60 days after receiving certifications from the owner or operator and a qualified professional engineer that the long-term care period has been completed in accordance with the approved long-term care plan, the department will notify the owner or operator in writing that the owner or operator is no longer required by this section to maintain financial assurance for long-term care of that unit, unless the department has reason to believe that long-term care has not been in accordance with the approved long-term care plan. The department will provide the owner or operator a detailed written statement of any reason to believe that long-term care has not been in accordance with the approved long-term care plan.Wis. Admin. Code Department of Natural Resources NR 665.0145
CR 05-032: cr. Register July 2006 No. 607, eff. 8-1-06.Amended by, CR 16-007: am. (5) (a) 2., (10) Register July 2017 No. 739, eff.8/1/2017The department may consider other financial commitments as allowed by s. 289.41(3) (a)5, Stats.