Chapter ATCP 93

ATCP 93.725(2)(b) (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:

ATCP 93.725(2)(b)1. 1. Reference in the agreement to underground tanks shall be amended to refer to aboveground tanks.

ATCP 93.725(2)(b)2. 2. Certification that wording is identical to the wording required in 40 CFR 280.103 (b) (1) shall be deleted.

ATCP 93.725 Note Note: A link to 40 CFR 280 is available at the following EPA Web site: http://www.epa.gov/oust/fedlaws/cfr.htm.

ATCP 93.725(3) (3) The department shall instruct the trustee to refund the balance of the standby trust fund to the provider of financial assurance if the department determines that no additional corrective action costs or third-party liability claims will occur as a result of a release covered by the financial assurance mechanism for which the standby trust fund was established.

ATCP 93.725(4) (4) An owner or operator may establish one trust fund as the depository mechanism for all funds assured in compliance with this section.

ATCP 93.725 History History: CR 17-092: cr. Register October 2019 No. 766, eff. 11-1-19.

ATCP 93.727 ATCP 93.727 Local government bond rating test.

ATCP 93.727(1) (1) 

ATCP 93.727(1)(a) (a) To use the bond rating test to meet the financial responsibility requirements of s. ATCP 93.705, a general purpose local government owner or operator or local government serving as a guarantor shall have a currently outstanding issue or issues of general obligation bonds of $1 million or more, excluding refunded obligations, with a Moody’s rating of Aaa, Aa, A, or Baa, or a Standard & Poor’s rating of AAA, AA, A, or BBB.

ATCP 93.727(1)(b) (b) Where a local government has multiple outstanding issues, or where a local government’s bonds are rated by both Moody’s and Standard and Poor’s, the lowest rating shall be used to determine eligibility.

ATCP 93.727(1)(c) (c) Bonds that are backed by credit enhancement other than municipal bond insurance may not be considered in determining the amount of applicable bonds outstanding.

ATCP 93.727(2) (2) 

ATCP 93.727(2)(a) (a) A local government owner or operator or local government serving as a guarantor that is not a general purpose local government and does not have the legal authority to issue general obligation bonds may satisfy the requirements of s. ATCP 93.705 by having a currently outstanding issue or issues of revenue bonds of $1 million or more, excluding refunded issues, and by also having a Moody’s rating of Aaa, Aa, A, or Baa, or a Standard & Poor’s rating of AAA, AA, A, or BBB as the lowest rating for any rated revenue bond issued by the local government.

ATCP 93.727(2)(b) (b) Where bonds are rated by both Moody’s and Standard & Poor’s, the lower rating for each bond shall be used to determine eligibility.

ATCP 93.727(2)(c) (c) Bonds that are backed by credit enhancement may not be considered in determining the amount of applicable bonds outstanding.

ATCP 93.727(3) (3) The local government owner or operator or guarantor shall maintain a copy of its bond rating published within the last 12 months by Moody’s or Standard & Poor’s.

ATCP 93.727(4) (4) To demonstrate that it meets the local government bond rating test, the chief financial officer of a general purpose local government owner or operator or guarantor shall sign a letter that is identical to the letter specified in 40 CFR 280.104 (d), except for the following:

ATCP 93.727(4)(a) (a) The instructions in brackets in the letter shall be replaced by the relevant information and the brackets deleted.

ATCP 93.727(4)(b) (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:

ATCP 93.727(4)(b)1. 1. Reference in the letter to underground tanks shall be amended to refer to aboveground tanks.

ATCP 93.727(4)(b)2. 2. Certification that wording is identical to the wording required in 40 CFR 280.104 (d) shall be deleted.

ATCP 93.727 Note Note: A link to 40 CFR 280 is available at the following EPA Web site: http://www.epa.gov/oust/fedlaws/cfr.htm.

ATCP 93.727(5) (5) To demonstrate that it meets the local government bond rating test, the chief financial officer of a local government owner or operator or guarantor other than a general purpose government shall sign a letter which is identical to the letter specified in 40 CFR 280.104 (e), except for the following:

ATCP 93.727(5)(a) (a) The instructions in brackets in the letter shall be replaced by the relevant information and the brackets deleted.

ATCP 93.727(5)(b) (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:

ATCP 93.727(5)(b)1. 1. Reference in the letter to underground tanks shall be amended to refer to aboveground tanks.

ATCP 93.727(5)(b)2. 2. Certification that wording is identical to the wording required in 40 CFR 280.104 (e) shall be deleted.

ATCP 93.727 Note Note: A link to 40 CFR 280 is available at the following EPA Web site: http://www.epa.gov/oust/fedlaws/cfr.htm.

ATCP 93.727(6) (6) The department may require reports of financial condition at any time from the local government owner or operator or local government guarantor. If the department finds that the local government owner or operator or guarantor no longer meets the local government bond rating test requirements of this section, the local government owner or operator shall obtain alternative coverage within 30 days after notification of such a finding.

ATCP 93.727(7) (7) If a local government owner or operator or local government guarantor using the bond rating test to provide financial assurance finds that it no longer meets the bond rating test requirements, the local government owner or operator shall obtain alternative coverage within 150 days of the change in status.

ATCP 93.727(8) (8) 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 bond rating test, or within 30 days of notification by the department that the owner or operator no longer meets the requirements of the bond rating test, the owner or operator shall notify the department of such failure within 10 days.

ATCP 93.727 History History: CR 17-092: cr. Register October 2019 No. 766, eff. 11-1-19.

ATCP 93.730 ATCP 93.730 Local government financial test.

ATCP 93.730(1) (1) To use a financial test to meet the financial responsibility requirements of s. ATCP 93.705, a local government owner or operator shall pass the financial test specified in this section. To be eligible to use the financial test, the local government owner or operator shall have the ability and authority to assess and levy taxes or to freely establish fees and charges. To pass the local government financial test, the owner or operator shall meet the criteria of this section based on year-end financial statements for the latest completed fiscal year.

ATCP 93.730(2) (2) The local government owner or operator shall have the following information available, as shown in the year-end financial statements for the latest completed fiscal year:

ATCP 93.730(2)(a) (a) Total revenues consisting of the sum of general fund operating and non-operating revenues including net local taxes, licenses and permits, fines and forfeitures, revenues from use of money and property, charges for services, investment earnings, sales of assets such as property and publications, restricted and unrestricted intergovernmental revenues, and total revenues from all other governmental funds including enterprise, debt service, capital projects, and special revenues, but excluding revenues to funds held in a trust or agency capacity. For purposes of this test, the calculation of total revenues excludes all transfers between funds under the direct control of the local government using the financial test, liquidation of investments and issuance of debt.

ATCP 93.730(2)(b) (b) Total expenditures consisting of the sum of general fund operating and non-operating expenditures including public safety, public utilities, transportation, public works, environmental protection, cultural and recreational, community development, revenue sharing, employee benefits and compensation, office management, planning and zoning, capital projects, interest payments on debt, payments for retirement of debt principal, and total expenditures from all other governmental funds including enterprise, debt service, capital projects, and special revenues. For purposes of this test, the calculation of total expenditures excludes all transfers between funds under the direct control of the local government using the financial test.

ATCP 93.730(2)(c) (c) Local revenues consisting of total revenues, as defined in par. (a), minus the sum of all transfers from other governmental entities, including all monies received from federal, state, or local government sources.

ATCP 93.730(2)(d) (d) Debt service consisting of the sum of all interest and principal payments on all long-term credit obligations and all interest-bearing short-term credit obligations. For purposes of this test, debt service includes interest and principal payments on general obligation bonds, revenue bonds, notes, mortgages, judgments, and interest bearing warrants. For purposes of this test, debt service excludes payments on non-interest-bearing short-term obligations, interfund obligations, amounts owed in a trust or agency capacity, and advances and contingent loans from other governments.

ATCP 93.730(2)(e) (e) Total funds consisting of the sum of cash and investment securities from all funds, including general, enterprise, debt service, capital projects and special revenue funds, but excluding employee retirement funds, at the end of the local government’s financial reporting year. For purposes of this test, the calculation of total funds includes federal securities, federal agency securities, state and local government securities, and other securities such as bonds, notes, and mortgages. For purposes of this test, the calculation of total funds excludes agency funds, private trust funds, accounts receivable, value of real property, and other non-security assets.

ATCP 93.730(2)(f) (f) Population consisting of the number of people in the area served by the local government.

ATCP 93.730(3) (3) The local government’s year-end financial statements, if independently audited, may not include an adverse auditor’s opinion or a disclaimer of opinion. The local government may not have outstanding issues of general obligation or revenue bonds that are rated as less than investment grade.

ATCP 93.730(4) (4) To demonstrate that it meets the financial test of this section, the chief financial officer of the local government owner or operator, shall sign, within 120 days of the close of each financial reporting year, as defined by the 12-month period for which financial statements used to support the financial test are prepared, a letter which is identical to the letter specified in 40 CFR 280.105 (c), except for the following:

ATCP 93.730(4)(a) (a) The instructions in brackets in the letter shall be replaced by the relevant information and the brackets deleted.

ATCP 93.730(4)(b) (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:

ATCP 93.730(4)(b)1. 1. Reference in the letter to underground tanks shall be amended to refer to aboveground tanks.

ATCP 93.730(4)(b)2. 2. Certification that wording is identical to the wording required in 40 CFR 280.105 (c) shall be deleted.

ATCP 93.730 Note Note: A link to 40 CFR 280 is available at the following EPA Web site: http://www.epa.gov/oust/fedlaws/cfr.htm.

ATCP 93.730(5) (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.

ATCP 93.730(6) (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.

ATCP 93.730(7) (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.

ATCP 93.730 History History: CR 17-092: cr. Register October 2019 No. 766, eff. 11-1-19.

ATCP 93.733 ATCP 93.733 Local government guarantee.

ATCP 93.733(1) (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.

ATCP 93.733(2) (2) A local government acting as the guarantor shall do one of the following:

ATCP 93.733(2)(a) (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.

ATCP 93.733(2)(b) (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.

ATCP 93.733(2)(c) (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.

ATCP 93.733(3) (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.

ATCP 93.733(4) (4) 

ATCP 93.733(4)(a) (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:

ATCP 93.733(4)(a)1. 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).

ATCP 93.733(4)(a)2. 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).

ATCP 93.733(4)(b) (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:

ATCP 93.733(4)(b)1. 1. The instructions in brackets in the guarantee shall be replaced by the relevant information and the brackets deleted.

ATCP 93.733(4)(b)2. 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:

ATCP 93.733(4)(b)2.a. a. Reference in the guarantee to underground tanks shall be amended to refer to aboveground tanks.

ATCP 93.733(4)(b)2.b. 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.

ATCP 93.733 Note 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.

ATCP 93.733(5) (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).

ATCP 93.733 Note Note: A link to 40 CFR 280 is available at the following EPA Web site: http://www.epa.gov/oust/fedlaws/cfr.htm.

ATCP 93.733(6) (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).

ATCP 93.733 Note Note: A link to 40 CFR 280 is available at the following EPA Web site: http://www.epa.gov/oust/fedlaws/cfr.htm.

ATCP 93.733(7) (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).

ATCP 93.733 Note Note: A link to 40 CFR 280 is available at the following EPA Web site: http://www.epa.gov/oust/fedlaws/cfr.htm.

ATCP 93.733(8) (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).

ATCP 93.733 Note Note: A link to 40 CFR 280 is available at the following EPA Web site: http://www.epa.gov/oust/fedlaws/cfr.htm.

ATCP 93.733 History 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 ATCP 93.735 Local government fund.

ATCP 93.735(1) (1) 

ATCP 93.735(1)(a) (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).

ATCP 93.735(1)(b) (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.

ATCP 93.735(1)(c) (c)

ATCP 93.735(1)(c)1. 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.

ATCP 93.735(1)(c)2. 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.

ATCP 93.735(1)(d) (d)

ATCP 93.735(1)(d)1. 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.

ATCP 93.735(1)(d)2. 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.