2023 Wisconsin Statutes & Annotations › Chapter 289 - Solid waste facilities. › 289.41 - Financial responsibility.

289.41
Financial responsibility.
(1)
Definitions. As used in this section:
(am)
“Capital expenditures" means any increase in the fixed assets made during a company's fiscal year.
(b)
“Company" means one of the following:
1.
Any business operated for profit and any public utility which is applying for or holds a license for the operation of a solid or hazardous waste disposal facility under s. 289.31 or 291.25 directly or through a subsidiary, affiliate, contractor or other entity if the business or public utility guarantees compliance with any closure and long-term care responsibilities of the subsidiary, affiliate, contractor or other entity.
2.
Any business operated for profit and any public utility that is required to perform corrective action under s. 291.37.
(c)
“Net worth" means the amount of a company's total tangible assets less the company's total liabilities.
(d)
“Public utility" means a public utility as defined in s. 196.01 (5) or an electric cooperative organized under ch. 185.
(e)
“Sinking fund" means principal debt payments made during a company's fiscal year.
(f)
“Tangible assets" means total assets less intangible assets such as goodwill, patents and trademarks.
(1m)
Long-term care and financial responsibility; termination.
(b)
Proof of financial responsibility.
1.
Except as provided in subd. 2. or 2m., the owner of an approved facility shall maintain proof of financial responsibility as provided in this section during the operation of the approved facility and for 40 years after the closing of the approved facility unless the obligation is extended under par. (f).
2.
The owner of an approved facility which ceased to accept solid waste and permanently terminated disposal operations before August 15, 1991, shall maintain proof of financial responsibility as provided in this section for the period specified in the approved plan of operation.
2m.
The owner of an approved mining facility that commences operation after June 14, 1996, shall maintain proof of financial responsibility as provided in this section during the operation of the approved mining facility and after the closing of the approved mining facility. The owner's obligation to maintain proof of financial responsibility terminates only as provided in par. (g).
3.
Except as provided in subd. 4., the owner of a nonapproved facility that receives or has received household waste shall maintain proof of financial responsibility as provided in this section during the operation of the nonapproved facility and for 40 years after the closing of the nonapproved facility unless the obligation is extended under par. (f).
4.
The owner of a nonapproved facility that ceases to accept solid waste and permanently terminates disposal operations before October 9, 1993, is not required to maintain proof of financial responsibility.
(c)
Long-term care responsibility for approved facilities. Notwithstanding s. 144.441 (2) (c) 1., 1989 stats., the owner's responsibility for the long-term care of an approved facility does not terminate, except that if another person acquires the rights of ownership and is issued under s. 289.46 (1) a new operating license for the approved facility, the owner's responsibility is transferred to that other person upon the issuance of the new operating license.
(f)
Extension of obligation to provide proof of financial responsibility. If the department determines that it is necessary to protect human health or the environment, the department may require the owner of a solid or hazardous waste disposal facility to provide proof of financial responsibility for the long-term care of the facility for more than 40 years. The department shall notify the owner of the extended obligation to provide proof of financial responsibility before the expiration of the original 40-year period. The department shall promulgate rules establishing the procedure used to determine if it is necessary to protect human health or the environment.
(g)
Proof of financial responsibility for approved mining facility; termination.
1.
The owner of an approved mining facility may apply, at any time at least 40 years after the closing of the facility, to the department for termination of the owner's obligation to maintain proof of financial responsibility for long-term care of the facility. Upon receipt of an application under this subdivision, the department shall publish a class 1 notice under ch. 985 in the official newspaper designated under s. 985.04 or 985.05 or, if none exists, in a newspaper likely to give notice in the area of the facility, shall publish the notice on its Internet website, and shall provide the notice, upon request, to interested members of the public. The department's notice to interested members of the public may be given through an electronic notification system established by the department. The notice shall include a statement that the owner has applied to terminate the owner's obligation to maintain proof of financial responsibility for the long-term care of the facility, the name and address of the owner, and information indicating where the full text of the application may be viewed on the department's Internet website. The notice shall invite the submission of written comments by any person within 30 days after the notice is published. The notice shall describe the methods by which a hearing may be requested under subds. 2. and 3. The department shall distribute a copy of the notice to the owner of the facility. In any hearing on the matter, the burden is on the owner to prove by a preponderance of the evidence that continuation of the requirement to provide proof of financial responsibility for long-term care is not necessary for adequate protection of human health or the environment. Within 120 days after the publication of the notice or within 60 days after any hearing is adjourned, whichever is later, the department shall determine whether proof of financial responsibility for long-term care of the facility continues to be required. For the purpose of determining the date on which notice is provided under this subdivision, the date on which the department first publishes the notice on its Internet website shall be considered the date of notice. A determination that proof of financial responsibility for long-term care is no longer required terminates the owner's obligation to maintain proof of financial responsibility for long-term care. The owner may not submit another application under this subdivision until at least 5 years after the previous application has been rejected by the department.
2.
Within 30 days after the notice under subd. 1. is published, any county, city, village or town, the applicant or any 6 or more persons may file a written request for an informational hearing on the matter with the department. The request shall indicate the interests of the municipality or persons who file the request and state the reasons why the hearing is requested.
3.
Within 30 days after the notice under subd. 1. is published, any county, city, village or town, the applicant or any 6 or more persons may file a written request that the hearing under subd. 2. be treated as a contested case, as provided under s. 227.42. A county, city, village or town, the applicant or any 6 or more persons have a right to have the hearing treated as a contested case only if all of the following apply:
a.
A substantial interest of the person requesting the treatment of the hearing as a contested case is injured in fact or threatened with injury by the department's action or inaction on the matter.
b.
The injury to the person requesting the treatment of the hearing as a contested case is different in kind or degree from injury to the general public caused by the department's action or inaction on the matter.
c.
There is a dispute of material fact.
(2)
Requirement for financial responsibility.
(a)
Disposal facilities. The owner or operator of a solid or hazardous waste disposal facility shall maintain proof of financial responsibility ensuring the availability of funds for compliance with the closure and long-term care requirements specified in any rule, order, plan of operation or other plan approval during the period specified in sub. (1m) (b) or under sub. (1m) (f).
(b)
Hazardous waste storage and treatment facilities. The owner or operator of a hazardous waste storage or treatment facility shall maintain proof of financial responsibility ensuring the availability of funds for compliance with all closure requirements specified in the plan of operation.
(c)
Hazardous waste disposal, storage and treatment facilities. If corrective action is required under s. 291.37, the owner or operator of the hazardous waste facility to which the requirement applies shall maintain proof of financial responsibility ensuring the availability of funds for compliance with the corrective action requirement.
(d)
Unlicensed hazardous waste facilities. The owner or operator of an unlicensed hazardous waste facility subject to s. 291.29 shall maintain proof of financial responsibility ensuring the availability of funds for compliance with the approved closure plan and, if applicable, the long-term care plan.
(3)
Standard methods of establishing proof of financial responsibility.
(a)
Standard methods. The owner or operator of a facility may establish proof of financial responsibility required under sub. (2) (a) to (d) by obtaining any of the following made payable to or established for the benefit of the department and approved by the department:
1.
A bond.
2.
A deposit.
3.
An established escrow account, the assets of which may include the following:
a.
Securities issued by the federal government.
b.
Debt securities issued by a commission, board, agency, or other instrumentality of the federal government that have a rating that is the highest rating category assigned by Standard & Poor's Corporation, Moody's Investors Service, or other similar nationally recognized rating agency.
c.
State bonds issued under subch. I of ch. 18.
d.
Corporate bonds that have a rating that is the highest rating category assigned by Standard & Poor's Corporation, Moody's Investors Service, or other similar nationally recognized rating agency. Corporate bonds may not be used to provide more than 50 percent of the required amount of proof of financial responsibility.
4.
An irrevocable letter of credit.
4m.
An irrevocable trust, the corpus of which may include the following:
a.
Securities issued by the federal government.
b.
Debt securities issued by a commission, board, agency, or other instrumentality of the federal government that have a rating that is the highest rating category assigned by Standard & Poor's Corporation, Moody's Investors Service, or other similar nationally recognized rating agency.
c.
State bonds issued under subch. I of ch. 18.
d.
Corporate bonds that have a rating that is the highest rating category assigned by Standard & Poor's Corporation, Moody's Investors Service, or other similar nationally recognized rating agency. Corporate bonds may not be used to provide more than 50 percent of the required amount of proof of financial responsibility.
5.
A financial commitment satisfactory to the department to ensure that the owner or operator will comply with the closure and any long-term care requirements specified in the plan of operation or the approved plan under s. 291.29. The department shall consider the request of any owner or operator to establish proof of financial responsibility under this subdivision.
6.
If corrective action is required under s. 291.37, a financial commitment satisfactory to the department to ensure that the owner or operator will comply with the requirement. The department shall consider the request of any owner or operator to establish proof of financial responsibility under this subdivision.
(b)
Duration of standard methods. The department may approve a standard method of establishing proof of financial responsibility under par. (a) which expires before the termination of the owner's obligation to provide proof of financial responsibility if the owner or operator shows to a reasonable degree of certainty that the proof of financial responsibility can be renewed or replaced upon expiration and that the owner or operator has an adequate plan to maintain proof of financial responsibility for the closure and long-term care requirements of the plan until termination of the owner's obligation to provide proof of financial responsibility.
(c)
Changes. The owner or operator may change from one standard method of establishing proof of financial responsibility under par. (a) to another or to a net worth method of establishing proof of financial responsibility under sub. (4).
(4)
Net worth method of establishing proof of financial responsibility; generally.
(a)
Net worth method. A company may establish proof of financial responsibility required under sub. (2) (a), (c) or (d) by applying to the department and meeting the net worth requirements.
(b)
Application. A company which seeks to establish proof of financial responsibility utilizing the net worth method shall submit an application to the department as a part of the initial license application, written submissions required under s. 291.37 or annual review procedure which includes a copy of the most recent annual audited financial statements which were distributed to owners, stockholders or other persons with a financial interest in the company and the opinion of an independent certified public accountant.
(c)
Opinion of certified public accountant. The opinion of the independent certified public accountant shall include all of the following based upon generally accepted accounting principles:
1.
All data and information necessary to determine if the company complies with minimum financial standards under sub. (6) or (7).
2.
Statements of any substantive qualifications or reservations the certified public accountant has concerning the financial statements and concerning the ability of the company to meet its obligations.
3.
Statements of all material contingent liabilities.
(5)
Department determination under net worth method.
(a)
Initial determination. Except as provided under par. (b), if the department determines that a company complies with minimum financial standards under sub. (6) and if the department determines that none of the contingent liabilities or other data or information provided in the financial statements or opinion of the certified public accountant disqualifies the company, then the department shall find that the company meets the net worth requirements which constitutes proof of financial responsibility for that year.
(b)
Initial determination; public utilities. If the department determines that a public utility complies with minimum financial standards under sub. (7), if the department determines that none of the contingent liabilities or other data or information in the financial statements or opinion of the certified public accountant disqualifies the public utility and if the department determines that the public utility complies with minimum security requirements under sub. (9), then the department shall find that the utility meets the net worth requirements which constitutes proof of financial responsibility for that year.
(c)
Adverse determination. If the department determines that contingent liabilities or other data or information provided in the opinion of the certified public accountant disqualifies a company under par. (a) or (b), the department shall issue findings of fact to support this determination and provide the company with an opportunity for a hearing.
(d)
Annual review. In order to continue to meet the net worth requirements each year, a company shall reapply under sub. (4) (b) submitting material required under sub. (4) (c). Subsequent determinations by the department shall take into consideration any changes in the plan of operation and adjustments to the estimated total cost of compliance with closure and any long-term care or corrective action requirements because of inflation or other changes.
(e)
Special review. If the department has reason to believe that a company no longer meets the net worth requirements, it may require the company to submit information and materials to show compliance at any time.
(f)
Failure to meet net worth requirements. If a company does not meet net worth requirements during the annual review or at any special review, the company shall establish proof of financial responsibility utilizing one of the standard methods under sub. (3) within 45 days after the department issues its findings.
(6)
Compliance with minimum financial standards under net worth method.
(a)
Compliance. Except as provided under par. (j), (k), (L), or (m) or sub. (7), calculations and determinations based on data and information provided in the opinion of the certified public accountant are required to establish that the company satisfies each of the criteria under pars. (b) to (i) in order to comply with minimum financial standards.
(b)
Net worth to closure, long-term care and corrective action cost ratio. The net worth of the company at the end of its most recently completed fiscal year equals or exceeds 6 times the estimated total cost of compliance with the closure and any long-term care requirements specified in the plan of operation or the approved plan under s. 291.29 plus the costs of any corrective action required under s. 291.37.
(c)
Minimum net worth. The net worth of a company at the end of its most recently completed fiscal year equals or exceeds $10,000,000.
(d)
Net fixed assets to total assets ratio. The quotient of the net fixed assets divided by total tangible assets at the end of the company's most recently completed fiscal year exceeds 0.3.
(e)
Working capital to total liabilities ratio. The quotient of the working capital provided from operations divided by total liabilities at the end of the company's most recently completed fiscal year exceeds 0.1.
(f)
Total liabilities to net worth ratio. The quotient of the total liabilities divided by net worth at the end of the company's most recently completed fiscal year is less than 1.5.
(g)
Credit worthiness. The quotient of the total of the working capital provided from operations at the end of the company's most recently completed fiscal year plus interest payments made during that year plus rental expenses incurred during that year, used as a dividend, divided by the total of interest payments made during that year plus rental expenses incurred during that year plus the product of the sinking fund at the end of that year times the tax factor, used as the divisor, exceeds 2.0. The tax factor equals the quotient of one, used as the dividend, divided by the total of one less the sum of the average federal income tax rate plus the average Wisconsin tax rate calculated in that year, used as the divisor.
(h)
Average self-financing measure. The average for the self-financing measures for the company's 5 previous fiscal years exceeds 0.8. The self-financing measure equals the quotient of the working capital provided from operations at the end of the company's fiscal year less dividend payments made during that year, used as the dividend, divided by the capital expenditures made during that year, used as the divisor.
(i)
Absence of qualifiers in certified public accountant's opinion. Information provided in the opinion of the certified public accountant does not indicate any of the following qualifications:
1.
Accounting practices or calculations made by or suspected to have been made by the company in its financial statements which deviate from generally accepted accounting principles.
2.
Any limitation on the scope of the audit procedures.
3.
Any indication that materials presented in or calculations made in the financial statement are unreliable because of future events not susceptible to reasonable estimation.
(j)
Variance from one criterion. If calculations and determinations based on data and information provided in the opinion of the certified public accountant establish that the company satisfies both the criteria under pars. (b) and (c) and all but one of the criteria under pars. (d) to (i) and if the department finds that the company meets minimum variance requirements, the department may grant a variance and issue a determination stating that the company complies with minimum financial standards. In order to meet minimum variance requirements:
1.
The deviation from the criterion may not be significant;
2.
The company is required to have satisfied the criterion consistently in previous fiscal years; and
3.
The company is required to establish that it is likely to satisfy the criterion in future fiscal years.
(k)
Exception from one criterion. Paragraph (e) does not apply to a company that owns a solid waste facility at which more than one-half, by volume, of the solid waste disposed of is high-volume industrial waste if the company satisfies the criteria under pars. (b) to (d) and (f) to (i).
(L)
Alternative criteria for certain companies. Paragraphs (e) and (f) do not apply to a company that owns a solid waste facility at which more than one-half, by volume, of the solid waste disposed of is high-volume industrial waste if the company satisfies the criteria under pars. (b) to (d) and (g) to (i) and one of the following criteria:
1.
The company received a rating for its senior unsubordinated debt of “AAA," “AA," “A," or “BBB" from Standard and Poor's Corporation, or of “Aaa," “Aa," “A," or “Baa" from Moody's Investor Service, Incorporated, in the most recent issuance of ratings by either firm.
2.
The quotient of the sum of net income plus depreciation, plus depletion, plus amortization, minus $10,000,000, divided by total liabilities at the end of the company's most recently completed fiscal year exceeds 0.1.
(m)
Alternative criteria for waste wood facility. Paragraph (d) does not apply to a company that owns a solid waste facility that processes waste wood if more than 50 percent, by volume, of the waste wood is processed to be used for energy recovery and the company satisfies the criteria under pars. (b), (c), and (e) to (i), and the following criteria:
1.
The quotient of short-term assets divided by short-term liabilities at the end of the company's most recent fiscal year equals or exceeds 4.0.
2.
The quotient of the sum of net income plus interest expense, plus depreciation, plus amortization, less capital expenditures, less dividends for the company's most recently completed fiscal year divided by the sum of interest expenses and mandatory payments on funded debt for that year equals or exceeds 4.0.
(7)
Compliance with minimum financial standards under net worth method; public utilities.
(a)
Compliance. A public utility is required to satisfy both the criteria under pars. (b) and (c) in order to comply with minimum financial standards.
(b)
Net worth to closure, long-term care and corrective action costs ratio; minimum net worth; and absence of qualifiers in certified public accountant's opinion. Calculations and determinations based on data and information provided in the opinion of the certified public accountant are required to establish that the utility satisfies each of the criteria under sub. (6) (b), (c) and (i); and
(c)
Minimum bond ratings. The public utility received a bond rating of “A" or better from the Moody's investor service, incorporated, or “A" or better from Standard and Poor's corporation in the most recent issuance of ratings by either firm.
(9)
Minimum security requirements under net worth method; public utilities; assessment order.
(a)
Minimum risk pool. A public utility may comply with minimum security requirements under a risk pool arrangement if at least 2 public utilities utilize this arrangement.
(b)
Inability to meet closure and long-term care or corrective action costs. If a public utility which utilizes the risk pool arrangement does not comply with the closure and long-term care requirements specified in any plan of operation or approved plan under s. 291.29 or with any corrective action required under s. 291.37 and if the department or the department of justice is unable to obtain compliance with these requirements after appropriate legal action because of bankruptcy, insolvency or the financial inability of the utility to comply with these requirements, then the department is authorized to enter an assessment order.
(c)
Assessment order. If the department is authorized to enter an assessment order, the order shall direct each public utility which utilized the risk pool arrangement in the previous year, except the utility which failed to comply with the closure and long-term care or corrective action requirements, to pay a share of the estimated total cost of compliance with these requirements proportional to the amount of electricity generated by each of these public utilities during the previous year.
(10)
Sale of facility. A person acquiring ownership, possession or operation of a solid or hazardous waste facility shall establish proof of financial responsibility as required under sub. (2). The previous owner or operator is responsible and shall maintain any required proof of financial responsibility until the person acquiring ownership, possession or operation of the facility establishes any required proof of financial responsibility.
(11)
Closure, long-term care and corrective action.
(a)
Failure to comply with closure and long-term care requirements. If the owner or operator of the facility fails to comply with the closure and any long-term care requirements in any plan of operation or approved plan under s. 291.29:
1.
The department may require the forfeiture or convert any standard method of establishing proof of financial responsibility if the owner or operator established proof of financial responsibility under sub. (3). All moneys received from the forfeiture or conversion of any standard method of establishing proof of financial responsibility shall be credited to the waste management fund.
3.
The department may issue an assessment order under sub. (9) (c) if the owner or operator established proof of financial responsibility by complying with minimum financial standards under sub. (7) and minimum security requirements under sub. (9). All moneys received from the assessment order shall be credited to the waste management fund.
4.
The department may request the department of justice to initiate court action against the owner or operator to recover moneys sufficient to pay the cost of complying with the closure and long-term care requirements of the plan of operation or approved plan under s. 291.29. Any moneys recovered in this type of action or as a settlement in anticipation of this type of action shall be credited to the waste management fund.
(am)
Failure to comply with corrective action requirements. If the owner or operator of the facility fails to comply with any corrective action requirements under s. 291.37:
1.
The department may require the forfeiture or convert any standard method of establishing proof of financial responsibility if the owner or operator established proof of financial responsibility under sub. (3). All moneys received from the forfeiture or conversion of any standard method of establishing proof of financial responsibility shall be credited to the waste management fund.
3.
The department may issue an assessment order under sub. (9) (c) if the owner or operator established proof of financial responsibility by complying with minimum financial standards under sub. (7) and minimum security requirements under sub. (9). All moneys received from the assessment order shall be credited to the waste management fund.
4.
The department may request the department of justice to initiate court action against the owner or operator to recover moneys sufficient to pay the cost of complying with a corrective action required under s. 291.37. Any moneys recovered in this type of action or as a settlement in anticipation of this type of action shall be credited to the waste management fund.
(b)
Compliance with closure and long-term care requirements.
1.
If the owner or operator of a waste facility fails to comply with the closure and any long-term care requirements in any plan of operation or approved plan under s. 291.29, the department may take action or contract with a person to take action to comply with these requirements from moneys obtained for that purpose under par. (a).
2.
If the owner or operator of an approved facility for which the plan of operation was approved under s. 289.30 (6) before August 9, 1989, fails to comply with long-term care requirements in the plan of operation after the requirement to provide proof of financial responsibility expires under sub. (1m) (b) or (f) and if the department takes reasonable administrative and legal action to require compliance or to obtain moneys under par. (a) 4., then the department may take action or contract with a person to take action to comply with the requirements even though no moneys have been obtained under par. (a).
(bm)
Compliance with corrective action requirements. If the owner or operator of a waste facility fails to comply with any corrective action required under s. 291.37, the department may take action or contract with a person to take action to comply with a corrective action required under s. 291.37 from moneys obtained for that purpose under par. (am).
(c)
Prevention of imminent hazard; closure and long-term care. If the owner or operator of an approved facility for which the plan of operation was approved under s. 289.30 (6) before August 9, 1989, fails to comply with the closure and any long-term care requirements in any plan of operation during the period for which the owner or operator is required to provide proof of financial responsibility, if the department determines that the failure to comply with these requirements presents an imminent or substantial danger to the health or environment and if the department takes reasonable administrative and legal action to require compliance or to obtain moneys under par. (a), then the department may take action or contract with a person to take action to comply with these requirements even though no moneys have been obtained under par. (a).
(cm)
Prevention of imminent hazard; corrective action. If the owner or operator of an approved facility for which the plan of operation was approved under s. 289.30 (6) before August 9, 1989, fails to comply with any corrective action required under s. 291.37, if the department determines that the failure to comply with a corrective action requirement presents an imminent or substantial danger to the health or environment and if the department takes reasonable administrative and legal action to require compliance or to obtain moneys under par. (am), then the department may take action or contract with a person to take action to comply with a corrective action required under s. 291.37 even though no moneys have been obtained under par. (am).
(12)
No environmental impact statement requirements. A determination under this section does not constitute a major state action under s. 1.11 (2).
History:  1981 c. 374; 1983 a. 27; 1983 a. 53 s. 114; 1985 a. 29 s. 3202 (39); 1987 a. 384; 1989 a. 31, 359; 1991 a. 31, 39; 1993 a. 135; 1995 a. 63; 1995 a. 227 ss. 588, 617 to 624; Stats. 1995 s. 289.41; 1995 a. 377 ss. 1 to 3; 1997 a. 35 ss. 327, 328, 396; 2001 a. 16; 2011 a. 167; 2013 a. 168 s. 21; 2013 a. 281; 2015 a. 50; 2017 a. 365 s. 112.