ATCP 93.1605 Note
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.
ATCP 93.1605 History
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
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.
ATCP 93.165 History
History: CR 17-092: cr.
Register October 2019 No. 766, eff. 11-1-19.
ATCP 93.170
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.
ATCP 93.170(1)
(1)
Applications for petition for variance. A petition for variance must include all of the following:
ATCP 93.170(1)(a)
(a) A completed and notarized petition for variance form, TR-WM-129.
ATCP 93.170(1)(c)
(c) If the petition is requesting a variance from building or property setback requirements, a position statement completed by the fire department having jurisdiction.
ATCP 93.170(2)(a)(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.
ATCP 93.170(2)(b)
(b) If additional information is needed, the department shall notify the owner in writing of the specific information required.
ATCP 93.170(2)(c)
(c) If the department determines that the petition for variance provides an equivalency, the department shall approve the variance.
ATCP 93.170(2)(e)
(e) If the department determines that the petition for variance does not provide an equivalency, the department may:
ATCP 93.170(2)(e)1.
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;
ATCP 93.170(2)(e)2.
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;
ATCP 93.170(2)(e)3.
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
ATCP 93.170(3)
(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.
ATCP 93.170(4)
(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.
ATCP 93.170(5)(a)
(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.
ATCP 93.170(5)(b)
(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.
ATCP 93.170(6)
(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.
ATCP 93.170 History
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
ATCP 93.175 Prohibited practices. Persons subject to this chapter are prohibited from the following:
ATCP 93.175(1)
(1) Falsifying any records and reports required under this chapter.
ATCP 93.175(2)
(2) Removal of or tampering with any red-tag without written authorization from the department or an authorized agent.
ATCP 93.175(3)
(3) Installation or removal of any storage tank system without department or authorized agent approval.
ATCP 93.175(4)
(4) Unauthorized altering or disabling of any system covered in this chapter.
ATCP 93.175(5)
(5) Failing to maintain permits and financial responsibility for underground storage tank systems.
ATCP 93.175(6)
(6) Failure to comply with an administrative order issued by the department or an authorized agent.
ATCP 93.175 History
History: CR 17-092: cr.
Register October 2019 No. 766, eff. 11-1-19.
ATCP 93.180
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.
ATCP 93.180 Note
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.”
ATCP 93.180 Note
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.
ATCP 93.180 History
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
ATCP 93.190 Appeals and hearings on enforcement decisions. ATCP 93.190(1)(a)(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.
ATCP 93.190(1)(b)1.1. 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. ATCP 93.190(1)(b)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.
ATCP 93.190(1)(b)3.
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.
ATCP 93.190(1)(b)5.
5. For purposes of this section, appeals filed after 4:30 p.m. shall be considered received on the next business day.
ATCP 93.190 Note
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:
ATCP 93.190 Note
In-person delivery address:
ATCP 93.190 Note
Department of Agriculture, Trade and Consumer Protection
ATCP 93.190 Note
2811 Agriculture Drive
ATCP 93.190 Note
Madison, Wisconsin 53708
ATCP 93.190 Note
Mailing address:
ATCP 93.190 Note
Secretary of Department of Agriculture, Trade and Consumer Protection
ATCP 93.190 Note
PO Box 8911
ATCP 93.190 Note
Madison WI 53708-8911
ATCP 93.190(1)(b)6.
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.
ATCP 93.190(1)(b)7.
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.
ATCP 93.190(1)(c)
(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.
ATCP 93.190(1)(d)1.
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:
ATCP 93.190(1)(d)1.a.
a. Be transmitted in writing to the secretary of the department or the person so designated by the secretary.
ATCP 93.190(1)(d)1.b.
b. Not be binding upon any party until accepted by the secretary of the department or the person so designated by the secretary.
ATCP 93.190(1)(d)2.
2. The settlement agreement shall be considered a joint motion by the parties to dismiss the appeal in its entirety with prejudice or to dismiss such portions of the appeal with prejudice as may be covered by the terms of the settlement agreement.
ATCP 93.190(1)(e)
(e)
Witness fees. Witness fees and mileage of witnesses subpoenaed on behalf of the department shall be paid at the rate prescribed for witnesses in circuit court.
ATCP 93.190(2)(a)
(a) All hearings shall be conducted by persons selected by the department in accordance with ch.
227, Stats.
ATCP 93.190(2)(b)
(b) Persons selected under par.
(a) may administer oaths or affirmations and may grant continuances and adjournments for cause shown.
ATCP 93.190(2)(c)
(c) The affected party shall appear in person and may be represented by legal counsel.
ATCP 93.190(2)(d)
(d) Witnesses may be examined by persons designated by the department.
ATCP 93.190(3)(a)(a) The department may make determinations and enter its order on the basis of the facts revealed by its investigation.
ATCP 93.190(3)(b)
(b) Any determinations as a result of petition or hearing shall be in writing and shall be binding unless appealed to the secretary of the department.
ATCP 93.190(4)
(4)
Appeal arguments. Appeal arguments shall be submitted to the department in writing unless otherwise ordered.
ATCP 93.190(5)(a)
(a) All hearings shall be held at a location determined by the department.
ATCP 93.190(5)(b)
(b) Telephone testimony of individual witnesses and telephone hearings may be held at the discretion of the person designated by the secretary as hearing officer.
ATCP 93.190(6)(c)1.1. A transcript of the recorded hearing shall be prepared upon request at the expense of the party requesting the transcript.
ATCP 93.190(6)(c)2.
2. Copies of transcripts prepared under this subsection shall be provided to the other party or parties upon payment of the actual cost of copying or obtaining a copy of the transcript.
ATCP 93.190(6)(c)4.
4. A transcript may be provided at the department's expense to a party who demonstrates impecuniousness or financial need if that party has filed a petition for judicial review.
