Chapter ATCP 33

Ch. ATCP 33 Note Note: Chapter 33 as it existed on October 31, 2006, was repealed and a new chapter 33 was created effective November 1, 2006.

Ch. ATCP 33 Note Note: Chapter ATCP 29 contains general rules related to the manufacture, storage, labeling, distribution and use of pesticides. Persons who manufacture, label, distribute or commercially apply pesticides must be licensed by the department.

Ch. ATCP 33 Note Chapter ATCP 40 contains general rules related to the manufacture, labeling and distribution of fertilizer. Persons who manufacture, label or distribute fertilizer must be licensed by the department.

Ch. ATCP 33 Note The department of agriculture, trade and consumer protection may investigate violations of this chapter, and may take enforcement action as necessary. See, for example, ss. 93.06 (7) to (10), 93.08, 93.14 to 93.16, 94.645 (4) and (5), and 94.77, Stats. See also s. 94.64, Stats. (fertilizer) and ss. 94.67 to 94.71, Stats. (pesticides).

Ch. ATCP 33 Note Under ch. ATCP 35, the department may reimburse certain agricultural chemical contamination cleanup costs. Failure to comply with this chapter may affect an operator's eligibility for reimbursement under ch. ATCP 35.

Ch. ATCP 33 Note Under the Federal Insecticide, Fungicide, and Rodenticide Act (7 USC 136 et. seq.), pesticide sellers who repackage pesticides by delivering them from bulk storage to customers must do the following things, among others:

Ch. ATCP 33 Note • Register the seller's facility as a pesticide producing establishment.

Ch. ATCP 33 Note • File annual pesticide production reports.

Ch. ATCP 33 Note • Maintain books and records.

Ch. ATCP 33 Note • Provide labeling to purchasers of bulk pesticides.

Ch. ATCP 33 Note • Deliver pesticides from bulk storage only to customers.

Ch. ATCP 33 Note • Maintain a formal repackaging agreement with the pesticide product registrant.

subch. I of ch. ATCP 33 Subchapter I — Definitions and General Provisions

ATCP 33.01 ATCP 33.01  Definitions. In this chapter:

ATCP 33.01(1) (1) “API 650" means the American Petroleum Institute standard 650, Welded Steel Tanks for Oil Storage, 10 th edition.

ATCP 33.01 Note Note: Copies of API 650 are on file with the department and the legislative reference bureau. Copies may be purchased from the American Petroleum Institute at 1220 L Street NW, Washington DC 20005-4070, telephone [phone].

ATCP 33.01(2) (2) “API 653" means the American Petroleum Institute standard 653, Tank Inspection, Repair, Alteration, and Reconstruction, 3rd edition.

ATCP 33.01 Note Note: Copies of API 653 are on file with the department and the legislative reference bureau. Copies may be purchased from the American Petroleum Institute at 1220 L Street NW, Washington DC 20005-4070, telephone [phone].

ATCP 33.01(3) (3) “API 653-certified inspector" means an inspector certified by the American Petroleum Institute, according to API 653, to inspect facilities for compliance with API 653.

ATCP 33.01(4) (4) “Appurtenances" means all valves, pumps, fittings, pipes, hoses, gauges, metering devices, mixing containers, and dispensing devices that are connected to a storage container, or through which liquid bulk fertilizer or liquid bulk pesticide is transferred into or out of a storage container.

ATCP 33.01(5) (5) “Bedrock" means the solid rock underlying any loose surficial material such as soil, alluvium or glacial drift. Bedrock includes but is not limited to limestone, dolomite, sandstone, shale and igneous and metamorphic rock.

ATCP 33.01(6) (6) “Bladder tank" means a covered liquid-tight steel tank containing a flexible liquid-tight bladder that holds the contents of the tank.

ATCP 33.01 Note Note: A “bladder tank" is both a “secondary containment structure" as defined in sub. (29) and a “storage container" as defined in sub. (31).

ATCP 33.01(7) (7) “Bulk fertilizer" means fertilizer in a container larger than 55 gallons (208 liters), or dry fertilizer in undivided quantities greater than 100 pounds (45 kilograms).

ATCP 33.01(8) (8) “Bulk pesticide" means liquid pesticide in a container larger than 55 gallons (208 liters), or dry pesticide in undivided quantities greater than 100 pounds (45 kilograms).

ATCP 33.01(9) (9) “Department" means the Wisconsin department of agriculture, trade and consumer protection.

ATCP 33.01(10) (10) “Discharge" means a spill, leak or other release of bulk fertilizer, bulk pesticide or rinsate. “Discharge" includes a spill, leak or other release that is contained within a mixing and loading pad, sump or secondary containment structure. “Discharge" does not include the legal use or disposal, according to this chapter, of material recovered from a mixing and loading pad, sump or secondary containment structure.

ATCP 33.01(11) (11) “Distribute" means to import, consign, sell, offer for sale, solicit orders for sale, or otherwise supply fertilizer or pesticide for sale or use in this state.

ATCP 33.01(12) (12) “Dry fertilizer" means fertilizer in solid form.

ATCP 33.01(13) (13) “Dry pesticide" means pesticide in solid form, pesticide-impregnated fertilizer, and includes pesticides formulated as dusts, wettable powders, dry flowable powders or granules.

ATCP 33.01(14) (14) “Fertilizer" has the meaning given in s. 94.64 (1) (e), Stats., except that it does not include manipulated manure or anhydrous ammonia.

ATCP 33.01 Note Note: Under s. 94.64 (1) (e), Stats., “fertilizer" means any substance, containing one or more plant nutrients, which is used for its plant nutrient content and which is designed for use or claimed to have value in promoting plant growth, except unmanipulated animal or vegetable manures, marl, liming material, sewage sludge other than finished sewage sludge products, and wood ashes. “Fertilizer" includes fertilizer materials, mixed fertilizers, custom mixed fertilizers, nonagricultural fertilizers and all other fertilizers or mixtures of fertilizers, regardless of type or form.

ATCP 33.01(15) (15) “Groundwater" means any waters of the state occurring in a saturated subsurface geological formation of rock or soil.

ATCP 33.01(16) (16) “Handling" means the transfer, loading, unloading, mixing or repackaging of bulk fertilizer or bulk pesticide, or the cleaning of containers or equipment to remove fertilizer or pesticide residues. “Handling" includes transferring water into a container that contains pesticide or fertilizer residues.

ATCP 33.01(17) (17) “Inorganic soil" means a soil composed of less than 30% organic matter, measured as less than 15% organic carbon by weight.

ATCP 33.01(18) (18) “Liquid fertilizer" means fertilizer in liquid form. “Liquid fertilizer" includes fertilizer solutions, fertilizer suspensions, fertilizer slurries and dilute fertilizers intended for distribution as fertilizer.

ATCP 33.01(19) (19) “Liquid pesticide" means pesticide in liquid form. “Liquid pesticide" includes pesticide solutions, pesticide emulsions, pesticide suspensions, pesticide slurries and dilute pesticides intended for distribution as pesticides.

ATCP 33.01(20) (20) “Manufacture" means to do any of the following, as applicable:

ATCP 33.01(20)(a) (a) Process, granulate, compound, produce, mix, blend or alter the composition of fertilizer.

ATCP 33.01(20)(b) (b) Process, formulate, prepare, compound, propagate, package or label any pesticide.

ATCP 33.01(21) (21) “Mini–bulk container" means any of the following:

ATCP 33.01(21)(a) (a) A storage container, designed for ready handling and transport, which holds more than 55 gallons (208 liters) but not more than 350 gallons (1,325 liters) of liquid fertilizer or liquid pesticide.

ATCP 33.01(21)(b) (b) A container that holds more than 100 pounds (45 kilograms) but not more than 2,500 pounds (1,136 kilograms) of dry fertilizer.

ATCP 33.01(21)(c) (c) A container that holds more than 100 pounds (45 kilograms) but not more than 1,000 pounds (454 kilograms) of dry pesticide.

ATCP 33.01(22) (22) “Mixing and loading pad" means a surface that complies with subchapter IV.

ATCP 33.01(23) (23) “Mobile container" means a bulk fertilizer or bulk pesticide storage container that is anchored to a vehicle, trailer or axles, and that can be readily transported when full. “Mobile container" includes a rail car, a nurse tank, or a supply container on application equipment.

ATCP 33.01(24) (24) “Operator" means a person who owns, operates or legally controls a storage facility, either directly or through an employee or agent, and includes employees and agents of an operator.

ATCP 33.01(25) (25) “Person" means an individual, corporation, partnership, cooperative, limited liability company, trust or other legal entity.

ATCP 33.01(26) (26) “Pesticide" has the meaning given in s. 94.67 (25), Stats. “Pesticide" includes all of the following:

ATCP 33.01(26)(a) (a) A fertilizer-pesticide mixture.

ATCP 33.01(26)(b) (b) A substance that is labeled as a pesticide for use in further manufacture or formulation of pesticides.

ATCP 33.01 Note Note: Under s. 94.67 (25), Stats., “pesticide" means any substance or mixture of substances labeled or designed or intended for use in preventing, destroying, repelling or mitigating any pest, or as a plant regulator, defoliant or desiccant.

ATCP 33.01(27) (27) “Professional engineer" means an individual licensed as a professional engineer by the Wisconsin department of safety and professional services.

ATCP 33.01(28) (28) “Rinsate" means water or other liquid containing fertilizer or pesticide residue. “Rinsate" includes liquid produced by the rinsing of fertilizer or pesticide containers.

ATCP 33.01(29) (29) “Secondary containment structure" means a structure that is designed to contain a discharge from a storage container or appurtenance.

ATCP 33.01(30) (30) “Storage bin" means a stationary receptacle used to store an undivided quantity of dry bulk fertilizer or dry bulk pesticide.

ATCP 33.01(31) (31) “Storage container" means a container used to store liquid bulk fertilizer or liquid bulk pesticide at a storage facility. “Storage container" includes a mobile container.

ATCP 33.01(32) (32) “Storage facility" means a place where bulk fertilizer or bulk pesticide is or has been stored for distribution, or for the manufacture of fertilizer or pesticide. “Storage facility" does not include a place where a mobile container is parked for unloading if all of the following apply:

ATCP 33.01(32)(a) (a) No person who owns or controls the parking location, or receives the unloaded fertilizer or pesticide, is engaged in the manufacture or distribution of fertilizer or pesticide.

ATCP 33.01(32)(b) (b) The fertilizer or pesticide is unloaded with the consent of a person who owns or controls the parking location.

ATCP 33.01(32)(c) (c) The fertilizer or pesticide is unloaded at the parking location for no more than 3 other persons, for application to a total of no more than 500 acres, in any calendar year.

ATCP 33.01(32)(d) (d) The mobile container, if unloaded for any person other than the person who owns or controls the parking location, has a capacity of no more than 500 gallons.

ATCP 33.01(32)(e) (e) The mobile container is parked at the location for no longer than 7 days.

ATCP 33.01(33) (33) “Structure" means a storage building, storage container, mixing and loading pad, sump, secondary containment structure, or rail car unloading area.

ATCP 33.01(34) (34) “Substantially alter" means to reconstruct, replace, structurally modify or change the capacity of a structure, or make any other change that may affect the containment of bulk fertilizer or bulk pesticide or the containment or recovery of discharges. “Substantially alter" does not include routine repair or maintenance, or routine replacement of parts with like parts.

ATCP 33.01(35) (35) “Sump" means a pit or receptacle that receives and collects liquid runoff from a mixing and loading pad or secondary containment structure.

ATCP 33.01(36) (36) “Tank-in-tank" means a steel storage container enclosed within a liquid-tight steel tank with which it shares a common roof but no common walls or floor. “Tank-in-tank" does not include a storage container with a double bottom.

ATCP 33.01 Note Note: A “tank-in-tank" is both a “secondary containment structure" under sub. (29) and a “storage container" under sub. (31).

ATCP 33.01(37) (37) “Waters of the state" means those portions of Lake Michigan and Lake Superior within the boundaries of this state, and all lakes, bays, rivers, streams, springs, ponds, wells, impounding reservoirs, marshes, watercourses, drainage systems and other surface water or groundwater, natural or artificial, public or private, within this state or its jurisdiction.

ATCP 33.01 History History: CR 05-108: cr. Register October 2006 No. 610, eff. 11-1-06; correction in (27) made under s. 13.92 (4) (b) 6., Stats., Register January 2012 No. 673.

ATCP 33.02 ATCP 33.02  Variances.

ATCP 33.02(1) (1)  Variance request. An operator may request a variance from a standard or requirement under this chapter. The operator shall make the request in writing, and may include the request as part of a filing under s. ATCP 33.10 (1). A request shall include all of the following:

ATCP 33.02(1)(a) (a) A clear description of the proposed nonconforming feature for which the operator seeks the variance.

ATCP 33.02(1)(b) (b) A statement describing how the proposed nonconforming feature will provide equivalent protection for waters of the state.

ATCP 33.02(1)(c) (c) A statement by a professional engineer, certifying that the proposed nonconforming feature will provide equivalent protection for waters of the state, if the proposed feature affects any of the following:

ATCP 33.02(1)(c)1. 1. The containment of bulk fertilizer or bulk pesticide.

ATCP 33.02(1)(c)2. 2. The containment or recovery of discharges.

ATCP 33.02(2) (2)  Action on variance request. The department may grant a variance request under sub. (1) if the department finds that the proposed nonconforming feature will provide equivalent protection for waters of the state. The department shall grant or deny a request within 30 days after the department receives a complete request, except that the department may for good cause extend the action deadline if the department gives written notice of the extension within the initial 30-day period. The extension notice shall include the extended deadline.

ATCP 33.02 History History: CR 05-108: cr. Register October 2006 No. 610, eff. 11-1-06.

subch. II of ch. ATCP 33 Subchapter II — Construction Plans and Siting

ATCP 33.10 ATCP 33.10  Construction plans.

ATCP 33.10(1) (1)  Filing required. At least 21 days before an operator constructs or substantially alters a structure at a storage facility, the operator shall file all of the following with the department:

ATCP 33.10(1)(a) (a) Design specifications for the construction or alteration.

ATCP 33.10(1)(b) (b) A signed written statement by a professional engineer, certifying that the design specifications comply with applicable requirements under this chapter.

ATCP 33.10(1)(c) (c) The approximate date on which the operator plans to start the construction or alteration. The operator may not start the construction or alteration before that date unless the operator gives the department prior notice of the new start date. The department may request additional schedule information, as necessary, in order to schedule an inspection under sub. (3).

ATCP 33.10 Note Note: Subsection (1) does not apply to the routine repair or maintenance of an existing structure. See s. ATCP 33.01 (34). This chapter does not require an operator to take soil samples before the operator constructs or substantially alters a structure. However, an operator may wish to do so in order to maintain cost reimbursement eligibility under s. ATCP 35.04.

ATCP 33.10(2) (2)  Discretionary review. The department may review and comment on the design specifications filed under sub. (1). The department is not required to review, approve or comment on the design specifications. A failure to comment does not signify approval. An operator is not required to obtain the department's approval for a proposed construction or alteration, but is required to comply with this chapter.

ATCP 33.10(3) (3)  Discretionary inspection. The department may inspect a construction or alteration under sub. (1).

ATCP 33.10(4) (4)  Construction conforming to plan. An operator may not, without prior written notice to the department, deviate from design specifications filed under sub. (1).