Wisconsin Legislature: ATCP 93.165

(d) Test results as specified in the permit application.

(4) All records that are required to be retained under either s. ATCP 93.400 (11) or 93.500 (9) shall be transferred to the new owner or operator.

Note: Marketer facilities should refer to: https://datcp.wi.gov/Pages/Programs_Services/StorageTankContacts.aspx. Non-marketer facilities should refer to: https://datcp.wi.gov/Pages/Programs_Services/StorageTankContacts.aspx.

History: CR 17-092: cr. Register October 2019 No. 766, eff. 11-1-19; correction in (3) (intro.) made under s. 13.92 (4) (b) 6., Stats., Register February 2022 No. 794.

ATCP 93.1605 Fees relating to storage tanks for liquids that are flammable, combustible or federally regulated hazardous substances.

(1) Plan examination and inspection fees. Fees for the examination of plans, site inspections and reinspections for tanks used for the storage of liquids that are flammable, combustible or federally regulated hazardous substances shall be determined in accordance with Table 93.1605.

(1m) Projects initiated without plan approval. The plan examination fees specified in Table 93.1605 shall be doubled for projects where the installation, erection, or construction was initiated without the required departmental approval.

(2) Groundwater fee. Pursuant to s. 168.23 (5), Stats., in addition to any fee charged by the department by rule for plan review and approval for the construction of a new or additional installation or change in operation of a previously approved installation for the storage, handling or use of flammable, combustible or hazardous liquids, the department shall collect a groundwater fee of $100 for each plan review submittal that includes at least one storage tank with a 1,000 gallon or greater capacity. The fees collected under this subsection shall be credited to the environmental fund for environmental management.

(3) Reinspection fee. The contractor, when performing activities covered under s. ATCP 93.240 (16) to (19), shall pay the reinspection fee to the authorized agent or the department if a return trip is required due to any of the following or is required to reschedule a trip on less than 24 hours of notice for any of the following:

(a) Failure to have the tank system accessible for inspection on the date and time specified for inspection.

(b) Installation inspection points that are incomplete on the date and time specified for inspection.

Note: Section ATCP 93.240 (16) covers aboveground tank system installation certification requirements. Section ATCP 93.240 (17) covers underground tank system installation certification requirements. Section ATCP 93.240 (18) covers tank system lining certification requirements. Section ATCP 93.240 (19) covers tank system removing and cleaning certification requirements.

(4) Special inspection fee. The owner or operator shall pay the miscellaneous inspection fee specified in sub. (5) to the authorized agent or the department for any of the following reasons:

(a) Replacement of identical equipment where the department or local program operator has waived the plan submittal requirement.

(b) Pre-operational inspection required by the department as a result of compliance orders where plan submittal is not required.

(5) Special inspection fee; amount. Any miscellaneous inspection fees assessed under this subsection or s. ATCP 93.115 (3) (c) 2. shall be assessed at the following rates:

(a) $160 per inspection for a facility with only aboveground storage tanks.

(b) $240 per inspection for a facility with at least one underground storage tank.

Table 93.1605

Plan Examination and Inspection Fees for Liquid Storage Tanks

- See PDF for table

Note: For all tanks which have a capacity of less than 5,000 gallons and which are reviewed by a local program operator, no state fees are required. The local program operator shall charge a fee which must be at least equal to the fee in this table, but which does not include the groundwater fee in sub. (2).

* If the department is conducting plan review in the absence of an assigned local program operator, the appropriate Table 93.1605 fees must be submitted, along with the groundwater fee in sub. (2). Further information on where local program operators perform reviews is available at the following Web site: https://datcp.wi.gov/Pages/Programs_Services/PetroleumHazStorageTanks.aspx.

** A point-of-sale system is any dispensing system that will authorize fuel dispensing by means of key, card or code activation. These conversions are reviewed by local program operators.

*** These reviews are performed only by the department.

History: CR 17-092: cr. Register October 2019 No. 766, eff. 11-1-19; correction in (3) (intro.), (5) (intro.),made under s. 35.17, Stats., and correction in (5) (b) made under s. 13.92 (4) (b) 12., Stats., Register October 2019 No. 766.

ATCP 93.165 Alternate forms. Although various sections of this chapter include a requirement to record certain information on a particularly specified department form, that requirement may be met by recording the same information in the same format on an alternate form if that form is approved by the department.

History: CR 17-092: cr. Register October 2019 No. 766, eff. 11-1-19.

ATCP 93.170 Petition for variance. The department shall consider and may grant a variance to a provision of this chapter. The petition for variance shall establish an equivalency which meets the intent of this chapter.

(1) Applications for petition for variance. A petition for variance must include all of the following:

(a) A completed and notarized petition for variance form, TR-WM-129.

(b) A petition for variance fee of $300.00.

(c) If the petition is requesting a variance from building or property setback requirements, a position statement completed by the fire department having jurisdiction.

(2) Department Action.

(a) Upon receipt of the petition for variance, including all required information, the department shall evaluate the petition for variance and determine if it provides for an equivalency which meets the intent of this chapter.

(b) If additional information is needed, the department shall notify the owner in writing of the specific information required.

(c) If the department determines that the petition for variance provides an equivalency, the department shall approve the variance.

(e) If the department determines that the petition for variance does not provide an equivalency, the department may:

1. Approve the petition for variance subject to specific conditions determined by the department which shall establish an equivalency which meets the intent of the rule;

2. Grant a temporary variance to delay enforcement of a rule to a specified date, not to exceed one year. In requesting the variance, the petitioner shall demonstrate that all available steps are being taken to safeguard the public and environment and shall possess and describe a program for coming into compliance with the rule as quickly as possible. A temporary variance may be renewed no more than twice, not to exceed one year each, and only if the petitioner files an application for renewal at least 90 calendar days before expiration of the temporary variance;

3. Grant an experimental variance to allow the petitioner to participate in an experiment approved by the department to demonstrate or validate new or improved techniques to safeguard the public and the environment; or

4. Deny the petition for variance.

(3) Notification of petition for variance determination. The department shall notify the petitioner in writing of the petition for variance determination, including any conditions of approval. Any denial shall include the reason for denial and information on the appeals procedure.

(4) Time limit for processing. The department shall review and make a determination on an application for a petition for variance within 30 business days.

(5) Modifications and revisions.

(a) If a petition for variance is initially denied by the department, the petitioner may, in writing, modify the request for variance by submitting additional or other alternatives in order to provide an equivalency and resubmit the application for the petition for variance.

(b) The petitioner may, in writing, request that the petitioner’s original statements or the conditions of approval be modified and resubmit the application for the petition for variance.

(6) Revocation. The department may revoke any petition for variance where it is determined that the variance was obtained through fraud or deceit or where the petitioner has violated the specific conditions on which the variance was approved.

History: CR 17-092: cr. Register October 2019 No. 766, eff. 11-1-19; correction in (2) (e) 2. made under s. 35.17, Stats., Register October 2019 No. 766.

ATCP 93.175 Prohibited practices. Persons subject to this chapter are prohibited from the following:

(1) Falsifying any records and reports required under this chapter.

(2) Removal of or tampering with any red-tag without written authorization from the department or an authorized agent.

(3) Installation or removal of any storage tank system without department or authorized agent approval.

(4) Unauthorized altering or disabling of any system covered in this chapter.

(5) Failing to maintain permits and financial responsibility for underground storage tank systems.

(6) Failure to comply with an administrative order issued by the department or an authorized agent.

History: CR 17-092: cr. Register October 2019 No. 766, eff. 11-1-19.

ATCP 93.180 Penalties. Penalties for violations of this chapter shall be assessed in accordance with s. 168.26, Stats., and shall apply separately to each tank that is in violation of this chapter.

Note: Section 168.26, Stats., in coordination with 40 CFR 281.41, states, “Any person who violates this section or any rule or order adopted under this section shall forfeit not less than $10 nor more than $5,000 for each violation. Each violation of this section or any rule or order under this section constitutes a separate offense and each day of continued violation is a separate offense.”

Note: Under 42 USC 6991e (a) (3) and (d) (2), the EPA may assess fines of up to $10,000 for each tank for each day of violation and may seek judicial penalties of up to $25,000 for each day of continued noncompliance.

History: CR 17-092: cr. Register October 2019 No. 766, eff. 11-1-19; correction made under s. 35.17, Stats., Register October 2019 No. 766.

ATCP 93.190 Appeals and hearings on enforcement decisions.

(1) Hearings.

(a) General. The owner or operator of a tank system may request a hearing with the department, as specified in s. ATCP 1.06, on any decision affecting that person’s legal rights, including enforcement orders and any petition for variance, material-approval, or permit decision issued under the scope of this chapter.

(b) Appeal requirements.

1. All appeals of enforcement orders issued under this chapter shall be in writing and shall be received by the department no later than 15 calendar days after the date of the enforcement order or decision being appealed, except as provided in subd. 2.

2. All appeals of petitions for variance or material-approval or permit decisions issued under this chapter shall be in writing and shall be received by the department no later than 30 calendar days after the date of the decision being appealed.

3. The department may make a determination not to proceed with a request for a hearing depending on the nature of the issue being appealed.

4. Appeals received after the appeal deadline shall be dismissed.

5. For purposes of this section, appeals filed after 4:30 p.m. shall be considered received on the next business day.

Note: The appellant or an attorney representing the appellant may request an administrative hearing to review this action by delivering, mailing, or faxing a written request for a hearing to one of the following:

In-person delivery address:

Department of Agriculture, Trade and Consumer Protection

2811 Agriculture Drive

Madison, Wisconsin 53708

Mailing address:

Secretary of Department of Agriculture, Trade and Consumer Protection

PO Box 8911

Madison WI 53708-8911

6. An appeal shall be signed by the person whose legal rights are affected by the decision being appealed or an attorney representing such person. Any appeal filed by a person other than the person whose legal rights are affected by the decision being appealed or an attorney representing that affected person shall be dismissed.

7. The written appeal shall list every reason the department’s or authorized agent’s decision is incorrect and shall identify every issue to be considered at the hearing. Issues not raised in the written appeal under this paragraph are considered waived and shall be dismissed.

(c) Response. Upon receipt of notification of hearing from the department, the affected party shall submit to the department a written response within 15 calendar days of the date of service. Failure to respond within the prescribed time limit or failure to appear at the scheduled hearing may result in the allegations specified in the complaint being accepted as true and accurate.

(d) Settlement agreement prior to hearing.

1. If the department and the affected party are able to reach preliminary agreement on disposition of a complaint prior to a hearing, such agreement shall be processed in accordance with all of the following:

a. Be transmitted in writing to the secretary of the department or the person so designated by the secretary.

b. Not be binding upon any party until accepted by the secretary of the department or the person so designated by the secretary.