Chapter ATCP 33

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).

ATCP 33.10 History History: CR 05-108: cr. Register October 2006 No. 610, eff. 11-1-06.

ATCP 33.12 ATCP 33.12 Storage facility siting.

ATCP 33.12(1) (1) Requirements. Except as provided in sub. (2), the base of each mixing and loading pad, the base of each secondary containment structure, and the floor of each building used to store bulk fertilizer or bulk pesticide shall be all of the following:

ATCP 33.12(1)(a) (a) At least 5 feet above bedrock.

ATCP 33.12(1)(b) (b) At least 5 feet above the seasonal high groundwater level. A determination of seasonal high groundwater level, by an independent soils tester licensed by the Wisconsin department of safety and professional services, is presumptively valid for purposes of this paragraph.

ATCP 33.12(1)(c) (c) At least 1,000 feet from the ordinary high water mark of any navigable lake and 300 feet from the ordinary high water mark of any navigable stream.

ATCP 33.12(1)(d) (d) Located outside of any 100-year flood plain.

ATCP 33.12(2) (2) Exemption. Subsection (1) does not apply to the reconstruction, expansion or alteration of a mixing and loading pad, secondary containment structure or storage building that was in use prior to November 1, 2006.

ATCP 33.12 Note Note: The exemption under sub. (2) applies only to sub. (1). It does not exempt a storage facility from any other federal, state or local regulations that may apply.

ATCP 33.12 History History: CR 05-108: cr. Register October 2006 No. 610, eff. 11-1-06; correction in (1) (b) made under s. 13.92 (4) (b) 6., Stats., Register January 2012 No. 673.

ATCP 33.14 ATCP 33.14 Water supply protection.

ATCP 33.14(1) (1) General. Wells at a storage facility shall comply with applicable requirements in chs. NR 811 and 812.

ATCP 33.14 Note Note: Chapters NR 811 and 812 comprise the state well code.

ATCP 33.14(2) (2) Backflow prevention.

ATCP 33.14(2)(a) (a) All water supply outlets at the storage facility shall be protected against backflow caused by backpressure or backsiphonage. Protection may include any of the following:

ATCP 33.14(2)(a)1. 1. A vertical air gap between each water supply outlet and any container or equipment filled from that outlet. The air gap distance shall be at least one inch, or twice the effective opening of the supply outlet, whichever is greater.

ATCP 33.14(2)(a)2. 2. A backflow prevention device that complies with s. SPS 382.41.

ATCP 33.14 Note Note: SPS 382 is part of the state plumbing code.

ATCP 33.14(2)(b) (b) An operator shall notify the department at least 7 business days prior to installing or modifying a backflow protection device or system, unless the operator is merely re-installing backflow prevention devices that the operator has temporarily removed to protect them from frost damage.

ATCP 33.14 History History: CR 05-108: cr. Register October 2006 No. 610, eff. 11-1-06; correction in (2) (a) 2. made under s. 13.92 (4) (b) 7., Stats., Register January 2012 No. 673.

subch. III of ch. ATCP 33 Subchapter III — Storage Containers and Related Structures

ATCP 33.20 ATCP 33.20 Liquid fertilizer and pesticide storage containers.

ATCP 33.20(1) (1) General requirements.

ATCP 33.20(1)(a) (a) Storage containers and appurtenances shall be designed, constructed, inspected and maintained to operate effectively and to prevent discharges under all reasonably foreseeable use conditions. Storage containers and appurtenances shall comply with this section, and shall be located within a secondary containment structure if required under s. ATCP 33.40.

ATCP 33.20(1)(b) (b) Storage containers and appurtenances shall be designed, constructed, inspected and maintained to resist corrosion, puncture and cracking.

ATCP 33.20(1)(c) (c) Materials used to construct or repair storage containers and appurtenances may not react chemically or electrolytically with stored fertilizer or pesticide in a way that may weaken the storage container or appurtenance, create a risk of discharge, or adulterate the fertilizer or pesticide.

ATCP 33.20(1)(d) (d) Metals used for storage container valves, fittings or repairs shall be compatible with other metals in the storage container, so that the combination of metals does not cause corrosion or electrolytic reactions that may weaken the storage container or its appurtenances, or create a risk of discharge.

ATCP 33.20(1)(e) (e) Storage containers and appurtenances shall be designed, constructed and maintained to hold fertilizer or pesticide of the highest specific gravity that may be stored in the containers.

ATCP 33.20(1)(f) (f) Bladder tanks, tank-in-tanks and field-erected storage containers shall be all of the following:

ATCP 33.20(1)(f)1. 1. Designed and constructed according to API 650, and certified for compliance by the manufacturer, if the structure is installed, constructed or substantially altered after November 1, 2006. API 650 calculations shall be based on the highest specific gravity of fertilizer or pesticide that may be stored in the container.

ATCP 33.20(1)(f)2. 2. Inspected before use, and at least once every 5 years during use, by an API 653-certified inspector for compliance with API 653. The storage container shall be inspected more frequently if recommended by an API 653-certified inspector. API 653 calculations shall be based on the highest specific gravity of fertilizer or pesticide that may be stored in the container.

ATCP 33.20(1)(f)3. 3. Repaired, when necessary, according to API 653 and the recommendations of an API 653-certified inspector.

ATCP 33.20 Note Note: Copies of API 650 and 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], or the following web address: www.api.org.