Wisconsin Legislature: ATCP 93.733(8)

2. Certification that wording is identical to the wording required in 40 CFR 280.105 (c) shall be deleted.

Note: A link to 40 CFR 280 is available at the following EPA Web site: http://www.epa.gov/oust/fedlaws/cfr.htm.

(5) If a local government owner or operator using the test to provide financial assurance finds that it no longer meets the requirements of the financial test based on the year-end financial statements, the owner or operator shall obtain alternative coverage within 150 days of the end of the year for which financial statements have been prepared.

(6) The department may require reports of financial condition at any time from the local government owner or operator. If the department finds that the local government owner or operator no longer meets the financial test requirements of this section, the owner or operator shall obtain alternate coverage within 30 days after notification of such a finding.

(7) If the local government owner or operator fails to obtain alternate assurance within 150 days of finding that it no longer meets the requirements of the financial test based on the year-end financial statements or within 30 days of notification by the department that it no longer meets the requirements of the financial test, the owner or operator shall notify the department of such failure within 10 days.

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

ATCP 93.733 Local government guarantee.

(1) To use a guarantee to meet the financial responsibility requirements of s. ATCP 93.705, a local government owner or operator shall obtain a guarantee that conforms to the requirements of this section. The guarantor shall be either the state in which the local government owner or operator is located or a local government having a substantial governmental relationship with the owner and operator and issuing the guarantee as an act incident to that relationship.

(2) A local government acting as the guarantor shall do one of the following:

(a) Demonstrate that it meets the bond rating test requirement of s. ATCP 93.727 and deliver a copy of the chief financial officer’s letter as contained in s. ATCP 93.727 (4) or (5) to the local government owner or operator.

(b) Demonstrate that it meets the worksheet test requirements of s. ATCP 93.730 and deliver a copy of the chief financial officer’s letter as contained in s. ATCP 93.730 (4) to the local government owner or operator.

(c) Demonstrate that it meets the local government fund requirements of s. ATCP 93.735 (1) and deliver a copy of the chief financial officer’s letter as contained in s. ATCP 93.735 (2) to the local government owner or operator.

(3) If the local government guarantor is unable to demonstrate financial assurance under any of s. ATCP 93.727, 93.730 or 93.735 (1) at the end of the financial reporting year, the guarantor shall send by certified mail, before cancellation or non-renewal of the guarantee, notice to the owner or operator. The guarantee shall terminate no less than 120 days after the date the owner or operator receives the notification as evidenced by the return receipt. The owner or operator shall obtain alternative coverage as specified in s. ATCP 93.753.

(4)

(a) The guarantee agreement shall be worded as specified in subs. (5) to (8), depending on which of the following alternative guarantee arrangements is selected:

1. If, in the default or incapacity of the owner or operator, the guarantor guarantees to fund a standby trust as directed by the department, the guarantee shall be worded as specified in sub. (5) or (6).

2. If, in the default or incapacity of the owner or operator, the guarantor guarantees to make payments as directed by the department for taking corrective action or compensating third parties for bodily injury and property damage, the guarantee shall be worded as specified in sub. (7) or (8).

(b) The local government guarantor shall sign a guarantee that is identical to the guarantee specified in the CFR section referenced in subs. (5) to (8), except for the following:

1. The instructions in brackets in the guarantee shall be replaced by the relevant information and the brackets deleted.

2. If financial responsibility for aboveground tanks within the scope of this subchapter is demonstrated using this method, all of the following changes shall be made:

a. Reference in the guarantee to underground tanks shall be amended to refer to aboveground tanks.

b. Certification that wording is identical to the wording required in 40 CFR 280.106 (d) or 40 CFR 280.106 (e) shall be deleted.

Note: A link to 40 CFR 280 is available at the following EPA Web site: http://www.epa.gov/oust/fedlaws/cfr.htm. There are 2 different documents specified in 40 CFR 280.106.

(5) If the guarantor is a state, the local government guarantee with standby trust shall be identical to the wording found in 40 CFR 280.106 (d), except as modified under sub. (4).

Note: A link to 40 CFR 280 is available at the following EPA Web site: http://www.epa.gov/oust/fedlaws/cfr.htm.

(6) If the guarantor is a local government, the local government guarantee with standby trust shall be identical to the wording found in 40 CFR 280.106 (d), except as modified under sub. (4).

Note: A link to 40 CFR 280 is available at the following EPA Web site: http://www.epa.gov/oust/fedlaws/cfr.htm.

(7) If the guarantor is a state, the local government guarantee without standby trust shall be identical to the wording found in 40 CFR 280.106 (e), except as modified under sub. (4).

Note: A link to 40 CFR 280 is available at the following EPA Web site: http://www.epa.gov/oust/fedlaws/cfr.htm.

(8) If the guarantor is a local government, the local government guarantee without standby trust shall be identical to the wording found in 40 CFR 280.106 (e), except as modified under sub. (4).

Note: A link to 40 CFR 280 is available at the following EPA Web site: http://www.epa.gov/oust/fedlaws/cfr.htm.

History: CR 17-092: cr. Register October 2019 No. 766, eff. 11-1-19; correction in (4) (a) made under s. 35.17, Stats., Register October 2019 No. 766.

ATCP 93.735 Local government fund.

(1)

(a) To use a local government fund to meet the financial responsibility requirements of s. ATCP 93.705, a local government owner or operator shall establish a dedicated fund account that conforms to the requirements of this section. A dedicated fund may not be commingled with other funds or otherwise used in normal operations, except as specified in par. (c). A dedicated fund shall be considered eligible if it meets the requirements in one of par. (b), (c), or (d).

(b) The fund is dedicated by state constitutional provision or local government statute, charter, ordinance, or order to pay for taking corrective action and for compensating third parties for bodily injury and property damage caused by accidental releases arising from the operation of petroleum underground storage tanks and is funded for the full amount of coverage required under s. ATCP 93.705, or funded for part of the required amount of coverage and used in combination with other mechanisms that provide the remaining coverage.

(c)

1. The fund is dedicated by state constitutional provision or local government statute, charter, ordinance, or order as a contingency fund for general emergencies, including taking corrective action and compensating third parties for bodily injury and property damage caused by accidental releases arising from the operation of petroleum underground storage tanks and is funded for 5 times the full amount of coverage required under s. ATCP 93.705 or funded for part of the required amount of coverage and used in combination with other mechanisms that provide the remaining coverage.

2. If the fund is funded for less than 5 times the amount of coverage required under s. ATCP 93.705, the amount of financial responsibility demonstrated by the fund may not exceed one-fifth the amount in the fund.

(d)

1. The fund is dedicated by state constitutional provision, or local government statute, charter, ordinance, or order to pay for taking corrective action and for compensating third parties for bodily injury and property damage caused by accidental releases arising from the operation of petroleum storage tanks.

2. A payment is made to the fund once every year for 7 years until the fund is fully funded. This 7-year period is hereafter referred to as the pay-in period.

3. The amount of each payment shall be determined by the formula (TF - CF)/Y, where TF is the total required financial assurance for the owner or operator, CF is the current amount in the fund, and Y is the number of years remaining in the pay-in period.

4. If the method in this paragraph is chosen, one of the following is also required:

a. The local government owner or operator has available bonding authority, approved through voter referendum if such approval is necessary prior to the issuance of bonds, for an amount equal to the difference between the required amount of coverage and the amount held in the dedicated fund. This bonding authority shall be available for taking corrective action and for compensating third parties for bodily injury and property damage caused by accidental releases arising from the operation of petroleum storage tanks.

b. The local government owner or operator has a letter signed by the appropriate state attorney general stating that the use of the bonding authority will not increase the local government’s debt beyond the legal debt ceilings established by Wisconsin statutes. The letter shall also state that prior voter approval is not necessary before use of the bonding authority.

(2) To demonstrate that it meets the requirements of the local government fund, the chief financial officer of the local government owner or operator or guarantor shall sign a letter worded exactly as specified in 40 CFR 280.107 (d), except for the following:

(a) The instructions in brackets in the letter shall be replaced by the relevant information and the brackets deleted.

(b) If financial responsibility for aboveground tanks within the scope of this subchapter is demonstrated using this method, all of the following changes shall be made:

1. Reference in the letter to underground tanks shall be amended to refer to aboveground tanks.

2. Certification that wording is identical to the wording required in 40 CFR 280.107 (d) shall be deleted.

Note: A link to 40 CFR 280 is available at the following EPA Web site: http://www.epa.gov/oust/fedlaws/cfr.htm.

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

ATCP 93.737 Substitution of financial assurance mechanisms by owner or operator.

(1) An owner or operator may substitute any alternate financial assurance mechanisms as specified in this subchapter, provided that at all times an effective financial assurance mechanism or combination of mechanisms is maintained which satisfies the financial responsibility requirements of s. ATCP 93.705.

(2) After obtaining alternate financial assurance as specified in this subchapter, an owner or operator may cancel a financial assurance mechanism by providing notice to the provider of financial assurance.

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

ATCP 93.740 Cancellation or nonrenewal by a provider of financial assurance.

(1)

(a) Except as otherwise provided, a provider of financial assurance may cancel or fail to renew an assurance mechanism by sending a notice of termination by certified mail to the owner or operator.

(b) Termination of a guarantee, a surety bond, or a letter of credit may not occur until 120 days after the date on which the owner or operator receives the notice of termination as evidenced by the return receipt.

(c)

1. Termination of insurance or risk retention group coverage or state-funded assurance, except for nonpayment or misrepresentation by the insured, may not occur until 60 days after the date on which the owner or operator received notice of termination as evidenced by the return receipt.

2. Termination for nonpayment of premium or misrepresentation by the insured may not occur until a minimum of 10 days after the date on which the owner or operator receives the notice of termination, as evidenced by the return receipt.

(2)

(a) If a provider of financial responsibility cancels or fails to renew for reasons other than incapacity of the provider as specified in s. ATCP 93.753, the owner or operator shall obtain alternate coverage as specified in this subchapter within 60 days after receipt of the notice of termination.

(b) If the owner or operator fails to obtain alternate coverage within 60 days after receipt of the notice of termination, the owner or operator shall notify the department of such failure and submit all of the following to the department:

1. The name and address of the provider of financial assurance.

2. The effective date of termination.

3. The evidence of the financial assistance mechanism subject to the termination maintained in accordance with s. ATCP 93.745 (2).

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

ATCP 93.743 Reporting by owner or operator.

(1) General. The owner or operator of a petroleum storage tank subject to financial responsibility requirements under the scope of this subchapter shall submit a copy of the applicable forms listed in s. ATCP 93.745 (2) documenting current evidence of financial responsibility to the department in accordance with this section.

(2) Timing.

(a) Underground tanks. Copies of the applicable forms listed in s. ATCP 93.745 (2) shall be submitted to the department upon annual permit renewal as required in s. ATCP 93.145, along with all of the following:

1. The specific location and designated regulated object number of tanks at each facility covered by the respective mechanism of financial responsibility.

2. If insurance and risk retention under s. ATCP 93.715 is used, the insurance underwriter certificate of insurance, and schedule of covered locations and storage tanks as provided by the insurer, reflecting pollution coverage in the amounts required under s. ATCP 93.705.

(b) Aboveground tanks. Copies of the applicable forms listed in s. ATCP 93.745 (2) shall be submitted to the department within 30 days after the owner or operator identifies a release from an aboveground storage tank that is required to be reported under s. ATCP 93.585.

(c) All tanks. If the owner or operator of an underground or aboveground petroleum storage tank fails to obtain alternate coverage as required by this subchapter, copies of the applicable forms listed in s. ATCP 93.745 (2) shall be submitted to the department within 30 days after the owner or operator receives notice of any of the following:

1. Commencement of a proceeding under Title 11, U.S. Code, naming a provider of financial assurance as a debtor.

2. Suspension or revocation of the authority of a provider of financial assurance to issue a financial assurance mechanism.

3. Failure of a guarantor to meet the requirements of the financial test.

4. Other incapacity of a provider of financial assurance.

(3) New tanks. The owner or operator of an underground petroleum storage tank, or an aboveground petroleum storage tank used or intended for use over water, shall certify compliance with the financial responsibility requirements of this subchapter as specified in the new tank registration form when notifying the department of the installation of a new storage tank as required in s. ATCP 93.140.

(4) Additional submittals. The department may require an owner or operator to submit evidence of financial assurance as described in s. ATCP 93.745 (2) or other information relevant to compliance with this subchapter at any time.

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

ATCP 93.745 Record keeping.

(1)

(a) Owners or operators shall maintain evidence of all financial assurance mechanisms used to demonstrate financial responsibility under this subchapter until released from the requirements of this subchapter under s. ATCP 93.750.