Chapter ATCP 31

ATCP 31.01 History History: Cr. Register, September, 1985, No. 357, eff. 10-1-85; correction made under s. 13.93 (2m) (b) 5., Stats., Register, February, 1993, No. 447; corrections in (6) made under s. 13.93 (2m) (b) 7., Stats., Register, January, 1998, No. 505.

ATCP 31.02 ATCP 31.02 Groundwater test results; use by department.

ATCP 31.02(1) (1) Use of official groundwater test results. An official groundwater test result is presumed to be reliable for purposes of regulatory or enforcement action under this chapter whether or not the department collected or analyzed the official groundwater sample.

ATCP 31.02(2) (2) Use of unofficial groundwater test results. A regulatory or enforcement action under this chapter may be based on a groundwater test result which is not an official groundwater test result only if the department determines that the unofficial groundwater test result is reliable for purposes of the regulatory or enforcement action.

ATCP 31.02 Note Note: If an unofficial groundwater sample is not determined to be reliable for purposes of regulatory or enforcement action under this chapter, the department may nevertheless:

ATCP 31.02 Note 1. Refer the unofficial groundwater test result to the department of natural resources, with or without a recommendation for official sampling and testing.

ATCP 31.02 Note 2. Inform affected persons of the unofficial groundwater test result.

ATCP 31.02 Note 3. Refer the unofficial groundwater test result to state or local health authorities, and to county agricultural extension agents.

ATCP 31.02 Note 4. Initiate further investigation or research related to the unofficial groundwater sample result.

ATCP 31.02(3) (3) Memorandum of understanding. Pursuant to ss. 160.21 (2) (e) and 160.27, Stats., the department shall enter into a memorandum of understanding with the department of natural resources to ensure the reliability of official groundwater test results used by the department for purposes of regulation and enforcement under this chapter. The memorandum of understanding shall govern the reporting and certification of official groundwater test results to the department by the department of natural resources. It shall also govern the collection, handling and analysis of official groundwater samples by the department of natural resources or its designated agents. The memorandum of understanding shall include:

ATCP 31.02(3)(a) (a) Standards for the collection of official groundwater samples, including standards related to:

ATCP 31.02(3)(a)1. 1. Collection equipment and containers.

ATCP 31.02(3)(a)2. 2. Collection procedures.

ATCP 31.02(3)(a)3. 3. Collection records.

ATCP 31.02(3)(b) (b) Standards for the handling of official groundwater samples, including:

ATCP 31.02(3)(b)1. 1. Temperature conditions under which samples are to be kept.

ATCP 31.02(3)(b)2. 2. Time periods within which samples are to be analyzed.

ATCP 31.02(3)(b)3. 3. Chain of custody requirements.

ATCP 31.02(3)(c) (c) Standards for the analysis of official groundwater samples, including:

ATCP 31.02(3)(c)1. 1. Required quality assurance programs for laboratories engaged in the analysis of official groundwater samples under this chapter.

ATCP 31.02(3)(c)2. 2. Control sample requirements.

ATCP 31.02(3)(c)3. 3. Required analytical methods.

ATCP 31.02(3)(c)4. 4. Required confirmation of analytical results.

ATCP 31.02(3)(c)5. 5. Instrument calibration and maintenance requirements.

ATCP 31.02(3)(c)6. 6. Required analytical worksheets and documentation.

ATCP 31.02(3)(c)7. 7. Chain of custody requirements in the laboratory.

ATCP 31.02(3)(c)8. 8. Requirements for the timely reporting of analytical results.

ATCP 31.02(3)(c)9. 9. Continuing sample custody requirements.

ATCP 31.02(3)(c)10. 10. Access to laboratory records by the department and the department of natural resources.

ATCP 31.02(3)(d) (d) Contract requirements applicable to designated agents engaged in the collection or analysis of official groundwater samples under this chapter.

ATCP 31.02(3)(e) (e) Reports and certifications required to accompany official groundwater samples and test results obtained by designated agents of the department of natural resources.

ATCP 31.02(3)(f) (f) Standards for the reporting and certification of official groundwater test results to the department by the department of natural resources.

ATCP 31.02(4) (4) Department contracts with agents designated to collect or analyze official groundwater samples. Every person or entity designated to collect or analyze an official groundwater sample as the agent of the department, rather than as the agent of the department of natural resources, shall first enter into a written contract with the department. Contracts shall include specific standards for the collection, handling and analysis of official groundwater samples, to ensure the reliability of official groundwater test results used by the department for purposes of regulation and enforcement under this chapter. Agents contracting directly with the department shall be held to the same requirements which are applicable to agents designated by the department of natural resources pursuant to a memorandum of understanding under sub. (3).

ATCP 31.02 History History: Cr. Register, September, 1985, No. 357, eff. 10-1-85.

ATCP 31.03 ATCP 31.03 Points of standards application.

ATCP 31.03(1) (1) To determine whether an enforcement standard or preventive action limit for a fertilizer substance or pesticide substance has been attained or exceeded, the concentration of the fertilizer substance or pesticide substance shall be measured at a point of standards application. Except as otherwise provided in this section, points of standards application for fertilizer substances and pesticide substances include:

ATCP 31.03(1)(a) (a) A community water system covered under ch. NR 811.

ATCP 31.03(1)(b) (b) A private water supply, high capacity water system, school water system or public water system covered under ch. NR 812.

ATCP 31.03(1)(c) (c) A monitoring well or other groundwater sample source, regardless of whether the well or source is covered under par. (a) or (b), if the well or source is reasonably designed and of adequate depth to permit the collection of representative groundwater samples.

ATCP 31.03(1)(d) (d) A monitoring well approved by the department under s. ATCP 31.08 (4) (a) 1. as a substitute for another point of standards application which is no longer available for testing.

ATCP 31.03(2) (2) Except with the consent of the property owner, neither a high capacity water system covered under ch. NR 812, nor a well or source not covered under sub. (1) (a) or (b) may be considered a point of standards application for a fertilizer substance or pesticide substance for purposes of a site-specific response under s. ATCP 31.07 (5) if:

ATCP 31.03(2)(a) (a) The system, well or source is located within the property boundary of a parcel of land on which an activity subject to department regulation is conducted; and

ATCP 31.03(2)(b) (b) The activity subject to department regulation is a potential source of the fertilizer substance or pesticide substance in groundwater; and

ATCP 31.03(2)(c) (c) The system, well or source is not used as a source of potable water. A system, well or source under this subsection shall be clearly posted to warn potential users that the system, well or source is not a potable water supply. The system, well or source shall be locked when not in use, to prevent any use of the system as a potable water supply.

ATCP 31.03(3) (3) A private water supply system or high capacity water supply system covered under ch. NR 812 shall, upon request of the system owner, be excluded as a point of standards application for purposes of a site-specific response under s. ATCP 31.07 (5) if the system is located within the property boundary of a parcel of land on which an activity subject to department regulation is conducted, and if:

ATCP 31.03(3)(a) (a) Use of the system has been discontinued, and the discontinued system is locked or otherwise secured to prevent any use of the system; or

ATCP 31.03(3)(b) (b) The system is used solely as a nonpotable water supply. A nonpotable water supply system under this paragraph shall be clearly posted to warn potential users that the system is not a potable water supply. The system shall also be locked or otherwise secured when not in use, to prevent any use of the system as a potable water supply.

ATCP 31.03(4) (4) A well or system shall be excluded as a point of standards application if the department or the department of natural resources determines that groundwater samples collected from the well or system do not reliably reflect groundwater conditions, because of the design or construction of the well or system.

ATCP 31.03 Note Note: Since groundwater monitoring is not usually required under existing rules for activities subject to department regulation, the points of standards application in this section are specified pursuant to s. 160.21 (2) (b), Stats.

ATCP 31.03 History History: Cr. Register, September, 1985, No. 357, eff. 10-1-85; Register, January, 1998, No. 505; correction made under s. 13.93 (2m) (b) 7., Stats.; cr. (1) (d), Register, March, 1998, No. 507, eff. 4-1-98.

ATCP 31.04 ATCP 31.04 Preliminary investigation based on groundwater sample test results.

ATCP 31.04(1) (1) Upon receipt of groundwater test results indicating the presence of a fertilizer substance or pesticide substance in groundwater, the department shall undertake a preliminary investigation to determine whether the presence of the fertilizer substance or pesticide substance may have resulted from, or may be affected by an activity subject to department regulation. The department may investigate on the basis of unofficial groundwater test results if the test results are sufficiently reliable to warrant investigation.

ATCP 31.04(2) (2) If, upon preliminary investigation, the department finds that the presence of a fertilizer substance or pesticide substance in groundwater has resulted from, or may be affected by an activity subject to department regulation, the department shall investigate to determine:

ATCP 31.04(2)(a) (a) Whether the presence of the fertilizer substance or pesticide substance in groundwater has resulted from a violation of an existing statute, rule or order administered by the department under s. 94.645, Stats., or ss. 94.67 through 94.71, Stats.

ATCP 31.04(2)(b) (b) Whether the concentration of the fertilizer substance or pesticide substance attains or exceeds an enforcement standard or preventive action limit.

ATCP 31.04 Note Note: If an unofficial groundwater test result is not sufficiently reliable to warrant investigation, the department may nevertheless:

ATCP 31.04 Note 1. Refer the groundwater test results to the department of natural resources, with or without a recommendation for official sampling or other action.

ATCP 31.04 Note 2. Refer the groundwater test results to another regulatory agency, with or without a recommendation for action.

ATCP 31.04 Note 3. Refer the groundwater test results to state or local health authorities, and to county agricultural extension agents.

ATCP 31.04 Note 4. Inform affected persons of the groundwater test results, and suggest voluntary measures to prevent, limit or reduce any substance concentrations which may exist in groundwater.

ATCP 31.04 Note 5. Initiate further investigation or research related to the groundwater test results.

ATCP 31.04 History History: Cr. Register, September, 1985, No. 357, eff. 10-1-85.

ATCP 31.05 ATCP 31.05 Violation of existing statute or rule; enforcement options.

ATCP 31.05(1) (1) Fertilizer and pesticide bulk storage; violation of existing rules. If, upon investigation under s. ATCP 31.04 (2), the department finds that the concentration of a fertilizer substance or pesticide substance in groundwater has resulted from a violation of rules adopted by the department under s. 94.645, Stats., the department may proceed against the violator using any of the following enforcement options, even if the concentration does not exceed an enforcement standard or preventive action limit:

ATCP 31.05(1)(a) (a) A court action to recover a civil forfeiture from the violator, as provided under s. 94.645 (5), Stats.

ATCP 31.05(1)(b) (b) An administrative special order proceeding, as provided under s. 94.645 (4) (a), Stats. Upon violation of a department special order issued under s. 94.645 (4) (a), Stats., the department may seek an injunction under s. 94.645 (4) (b), Stats., or a civil forfeiture under s. 94.645 (5), Stats.

ATCP 31.05(1)(c) (c) A warning notice under s. 93.06 (10), Stats.

ATCP 31.05 Note Note: Rules adopted under s. 94.645, Stats., to regulate fertilizer bulk storage are contained in ch. ATCP 33. Rules adopted under s. 94.645, Stats., to regulate pesticide bulk storage are contained in ch. ATCP 33.

ATCP 31.05(2) (2) Pesticide use; violation of existing statutes or rules. If, upon preliminary investigation under s. ATCP 31.04 (2), the department finds that the concentration of a pesticide substance in groundwater has resulted from a violation of any provision of ss. 94.67 through 94.71, Stats., or any rule adopted under s. 94.69, Stats., the department may proceed against the violator using any of the enforcement options set forth under s. 94.71, Stats., as appropriate, or may issue a warning notice to the violator under s. 93.06 (10), Stats., as appropriate. The concentration of a pesticide substance in groundwater need not attain or exceed an enforcement standard or preventive action limit in order for the department to take enforcement action under this subsection.

ATCP 31.05(3) (3) This section does not limit the department’s responsibility under ss. ATCP 31.06 and 31.07.

ATCP 31.05 History History: Cr. Register, September, 1985, No. 357, eff. 10-1-85.

ATCP 31.06 ATCP 31.06 Fertilizer or pesticide bulk storage; groundwater contamination exceeding enforcement standard or preventive action limit; regulatory options.

ATCP 31.06(1) (1) Rulemaking. If, upon investigation under s. ATCP 31.04 (2), the department finds that the concentration of a fertilizer substance or pesticide substance in groundwater attains or exceeds an enforcement standard or preventive action limit, and that the concentration has resulted from or may be affected by bulk fertilizer or bulk pesticide storage activities which are not currently regulated by the department, the department shall review its rules adopted under s. 94.645, Stats., to determine whether the rules should be amended pursuant to s. 160.19, Stats. Rule amendments, if any, shall be general in application, and may not be limited in their application to a single bulk fertilizer or bulk pesticide storage facility.

ATCP 31.06 Note Note: Rules adopted under s. 94.645, Stats., to regulate fertilizer bulk storage are contained in ch. ATCP 33. Rules adopted under s. 94.645, Stats., to regulate pesticide bulk storage are contained in ch. ATCP 33.

ATCP 31.06(2) (2) Special orders; statutory limitations on use. The department may not regulate the storage of bulk fertilizer or bulk pesticides by special order under s. 94.645 (4) (a), Stats., except to prohibit or correct a violation of existing rules under s. 94.645, Stats. This does not prevent the department from regulating the storage or other use of bulk pesticides by special order under s. 94.71 (3) (c), Stats., and this chapter, whether or not the storage or use violates existing rules under s. 94.645, Stats.

ATCP 31.06 Note Note: If groundwater contamination is related to fertilizer bulk storage, but the department is unable to respond by rule or special order, the department may refer the matter to the department of natural resources for possible site-specific action under ch. 292, Stats.

ATCP 31.06 History History: Cr. Register, September, 1985, No. 357, eff. 10-1-85.

ATCP 31.07 ATCP 31.07 Pesticide use; groundwater contamination exceeding enforcement standard or preventive action limit; site-specific response.

ATCP 31.07(1) (1) Site-specific response; general. If, upon investigation under s. ATCP 31.04 (2), the department finds that the concentration of a pesticide substance in groundwater attains or exceeds an enforcement standard or preventive action limit, and that the concentration has resulted from or may be affected by a pesticide use, the department shall implement an appropriate site-specific response to regulate the pesticide use, pursuant to the applicable provisions of ss. 160.21 (3), 160.23 and 160.25, Stats., and this section. A site-specific response may take any of the forms described under sub. (2). A site-specific response may be implemented to regulate a pesticide use, whether or not the pesticide use violates an existing statute or rule administered by the department. Except as otherwise provided under s. 160.23 or 160.25, Stats., the site-specific response shall be designed to minimize the concentration of the pesticide substance where technically and economically feasible and to restore and maintain compliance with the preventive action limit at the point of standards application, and at other downgradient points to which the pesticide substance may migrate. A site-specific response may be implemented pursuant to substance-specific rules adopted under s. ATCP 31.09.

ATCP 31.07(2) (2) Site-specific response; form of regulatory action.

ATCP 31.07(2)(a) (a) Special orders.

ATCP 31.07(2)(a)1. 1. A site-specific response may include one or more special orders issued under s. 94.71 (3) (c), Stats. The department may issue a special order to a respondent, whether or not the respondent has previously engaged in the use of the pesticide, if the department finds that the special order is necessary to achieve the objectives under sub. (1). The department may, by substance-specific rules under s. ATCP 31.09, prescribe the scope and contents of special orders, and the conditions under which special orders are to be issued. Special orders may be issued on a summary basis, according to criteria set forth under s. 94.71 (3) (c), Stats., and any substance-specific rules adopted under s. ATCP 31.09. Summary special orders are subject to a right of hearing before the department upon request. Special orders required by rule may be signed by a department employee designated in the rule. All other special orders shall be signed by the secretary, or a person individually designated by the secretary.

ATCP 31.07(2)(a)2. 2. A special order may include:

ATCP 31.07(2)(a)2.a. a. A prohibition against the use of a pesticide, subject to s. ATCP 31.08.

ATCP 31.07(2)(a)2.b. b. Limitations on the purposes for which a pesticide may be used, including limitations on the crops or target pests for which a pesticide may be used.

ATCP 31.07(2)(a)2.c. c. Limitations on the rate at which a pesticide is applied.

ATCP 31.07(2)(a)2.d. d. Limitations on the time or frequency of pesticide use.

ATCP 31.07(2)(a)2.e. e. Limitations on the method of pesticide use.

ATCP 31.07(2)(a)2.f. f. Requirements for the training or certification of pesticide applicators or other persons using a pesticide.