Chapter ATCP 93

ATCP 93.737(2) (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.

ATCP 93.737 History History: CR 17-092: cr. Register October 2019 No. 766, eff. 11-1-19.

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

ATCP 93.740(1) (1) 

ATCP 93.740(1)(a) (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.

ATCP 93.740(1)(b) (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.

ATCP 93.740(1)(c) (c)

ATCP 93.740(1)(c)1. 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.

ATCP 93.740(1)(c)2. 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.

ATCP 93.740(2) (2) 

ATCP 93.740(2)(a) (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.

ATCP 93.740(2)(b) (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:

ATCP 93.740(2)(b)1. 1. The name and address of the provider of financial assurance.

ATCP 93.740(2)(b)2. 2. The effective date of termination.

ATCP 93.740(2)(b)3. 3. The evidence of the financial assistance mechanism subject to the termination maintained in accordance with s. ATCP 93.745 (2).

ATCP 93.740 History History: CR 17-092: cr. Register October 2019 No. 766, eff. 11-1-19.

ATCP 93.743 ATCP 93.743 Reporting by owner or operator.

ATCP 93.743(1) (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.

ATCP 93.743(2) (2) Timing.

ATCP 93.743(2)(a) (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:

ATCP 93.743(2)(a)1. 1. The specific location and designated regulated object number of tanks at each facility covered by the respective mechanism of financial responsibility.

ATCP 93.743(2)(a)2. 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.

ATCP 93.743(2)(b) (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.

ATCP 93.743(2)(c) (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:

ATCP 93.743(2)(c)1. 1. Commencement of a proceeding under Title 11, U.S. Code, naming a provider of financial assurance as a debtor.

ATCP 93.743(2)(c)2. 2. Suspension or revocation of the authority of a provider of financial assurance to issue a financial assurance mechanism.

ATCP 93.743(2)(c)3. 3. Failure of a guarantor to meet the requirements of the financial test.

ATCP 93.743(2)(c)4. 4. Other incapacity of a provider of financial assurance.

ATCP 93.743(3) (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.

ATCP 93.743(4) (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.

ATCP 93.743 History History: CR 17-092: cr. Register October 2019 No. 766, eff. 11-1-19.

ATCP 93.745 ATCP 93.745 Record keeping.

ATCP 93.745(1) (1) 

ATCP 93.745(1)(a) (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.

ATCP 93.745(1)(b) (b) An owner or operator shall maintain such evidence at the storage tank site or the owner’s or operator’s place of business.

ATCP 93.745(1)(c) (c) Records maintained off-site shall be made available to the authorized agent or the department upon request.

ATCP 93.745(2) (2) An owner or operator shall maintain the following types of evidence of financial responsibility:

ATCP 93.745(2)(a) (a) An owner or operator using an assurance mechanism specified in ss. ATCP 93.710 to 93.720, ss. ATCP 93.727 to 93.735, or s. ATCP 93.723 shall maintain a copy of the instrument.

ATCP 93.745(2)(b) (b) An owner or operator using a financial test or guarantee, or a local government financial test or a local government guarantee supported by the local government financial test shall maintain a copy of the chief financial officer’s letter based on year-end financial statements for the most recent completed financial reporting year. Such evidence shall be on file no later than 120 days after the close of the financial reporting year.

ATCP 93.745(2)(c) (c) An owner or operator using a guarantee, surety bond, or letter of credit shall maintain a copy of the signed standby trust fund agreement and copies of any amendments to the agreement.

ATCP 93.745(2)(d) (d) A local government owner or operator using a local government guarantee under s. ATCP 93.733 (4) shall maintain a copy of the signed standby trust agreement and copies of any amendments to the agreement.

ATCP 93.745(2)(e) (e) A local government owner or operator using the local government bond rating test under s. ATCP 93.727 shall maintain a copy of its bond rating published within the last 12 months by Moody’s or Standard & Poor’s.

ATCP 93.745(2)(f) (f) A local government owner or operator using the local government guarantee under s. ATCP 93.733 where the guarantor’s demonstration of financial responsibility relies on the bond rating test under s. ATCP 93.727 shall maintain a copy of the guarantor’s bond rating published within the last 12 months by Moody’s or Standard & Poor’s.

ATCP 93.745(2)(g) (g) An owner or operator using an insurance policy or risk retention group coverage shall maintain a copy of the signed insurance policy or risk retention group coverage policy with the endorsement or certificate of insurance and any amendments to the agreements.

ATCP 93.745(2)(h) (h) An owner or operator using a local government fund under s. ATCP 93.735 shall maintain all of the following documents:

ATCP 93.745(2)(h)1. 1. A copy of the state statute or provision or local government ordinance or order that dedicates the fund.

ATCP 93.745(2)(h)2. 2.

ATCP 93.745(2)(h)2.a. a. Year-end financial statements for the most recent completed financial reporting year showing the amount in the fund.

ATCP 93.745(2)(h)2.b. b. If the fund is established using incremental funding backed by bonding authority, financial statements showing the previous year’s balance, the amount of funding during the year, and the closing balance in the fund.

ATCP 93.745(2)(h)3. 3. If the fund is established using incremental funding backed by bonding authority, documentation showing the required bonding authority, including either the results of a voter referendum or attestation by the Wisconsin attorney general.

ATCP 93.745(2)(i) (i) A local government owner or operator using the local government guarantee supported by the local government fund shall maintain a copy of the guarantor’s year-end financial statements for the most recent completed financial reporting year showing the amount of the fund.

ATCP 93.745(2)(j) (j)

ATCP 93.745(2)(j)1. 1. An owner or operator using an assurance mechanism specified in ss. ATCP 93.710 to 93.735 shall maintain an updated copy of an affidavit of financial responsibility worded exactly as specified in 40 CFR 280.111 (b) (11) (i), except as specified in subds. 2. and 3.

ATCP 93.745(2)(j)2. 2. The instructions in brackets in the affidavit shall be replaced by the relevant information and the brackets deleted.

ATCP 93.745(2)(j)3. 3. 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 93.745(2)(j)3.a. a. Any reference in the affidavit to underground tanks shall be amended to refer to aboveground tanks.

ATCP 93.745(2)(j)3.b. b. Any certification that wording is identical to the wording required in 40 CFR 280.111 (b) (11) (i) shall be deleted.

ATCP 93.745 Note Note: A copy of the affidavit of financial responsibility required in 40 CFR 280.111 (b) (11) (i) is available from the department’s Web site at https://datcp.wi.gov/Pages/Programs_Services/PetroleumHazStorageTanksForms.aspx.

ATCP 93.745(2)(j)4. 4. The owner or operator shall update the affidavit referenced in subd. 1. annually and whenever the financial assurance mechanisms used to demonstrate financial responsibility change or when requested by the department.

ATCP 93.745 History History: CR 17-092: cr. Register October 2019 No. 766, eff. 11-1-19.

ATCP 93.747 ATCP 93.747 Drawing on financial assurance mechanisms.

ATCP 93.747(1) (1) 

ATCP 93.747(1)(a) (a) The department shall require the guarantor, surety, or institution issuing a letter of credit to place the amount of funds stipulated by the department, up to the limit of funds provided by the financial assurance mechanism, into the standby trust if the conditions under either par. (b) or (c) apply.

ATCP 93.747(1)(b) (b)

ATCP 93.747(1)(b)1. 1. The owner or operator fails to establish alternate financial assurance within 60 days after receiving notice of cancellation of the guarantee, surety bond, letter of credit, or other financial assurance mechanism.

ATCP 93.747(1)(b)2. 2. The department determines or suspects that a release from a storage tank covered by the mechanism has occurred and so notifies the owner or operator, or the owner or operator has notified the department of natural resources pursuant to s. ATCP 93.585 of a release from a storage tank covered by the mechanism.

ATCP 93.747(1)(c) (c) The conditions of sub. (2) (b) or (c) 1. or 2. are satisfied.

ATCP 93.747(2) (2) 

ATCP 93.747(2)(a) (a) The department may draw on a standby trust fund when the conditions under either par. (b) or (c) apply.

ATCP 93.747(2)(b) (b) The department makes a final determination that a release has occurred and immediate or long-term corrective action for the release is needed, and the owner or operator, after appropriate notice and opportunity to comply, has not conducted corrective action in accordance with ss. ATCP 93.570 to 93.585.

ATCP 93.747(2)(c) (c) The department has received one of the following:

ATCP 93.747(2)(c)1. 1. Certification from the owner or operator and the third-party liability claimants and from attorneys representing the owner or operator and the third-party liability claimants that a third-party liability claim should be paid. The certification shall be worded exactly as specified in 40 CFR 280.112 (b) (2) (i), except for the following:

ATCP 93.747(2)(c)1.a. a. The instructions in brackets in the certification shall be replaced by the relevant information and the brackets deleted.

ATCP 93.747(2)(c)1.b. b. If financial responsibility for aboveground tanks within the scope of this subchapter is demonstrated using this method, reference in the certification to underground tanks shall be amended to refer to aboveground tanks, and any certification that wording is identical to the wording required in 40 CFR 280.112 (b) (2) (i) shall be deleted.

ATCP 93.747 Note Note: A copy of the affidavit of financial responsibility required in 40 CFR 280.111 (b) (2) (i) is available from the department’s Web site at https://datcp.wi.gov/Pages/Programs_Services/PetroleumHazStorageTanks.aspx.

ATCP 93.747(2)(c)2. 2. A valid final court order establishing a judgment against the owner or operator for bodily injury or property damage caused by an accidental release from a storage tank covered by financial assurance under this subchapter and the department determines that the owner or operator has not satisfied the judgment.

ATCP 93.747(3) (3) If the department determines that the amount of corrective-action costs and third-party liability claims eligible for payment under sub. (2) may exceed the balance of the standby trust fund and the obligation of the provider of financial assurance, the first priority for payment shall be corrective action costs necessary to protect human health and the environment. The department shall pay third-party liability claims in the order in which the department receives certifications under sub. (2) (c) 1. and valid court orders under sub. (2) (c) 2.

ATCP 93.747 History History: CR 17-092: cr. Register October 2019 No. 766, eff. 11-1-19.

ATCP 93.750 ATCP 93.750 Release from the requirements. An owner or operator is no longer required to maintain financial responsibility under this subchapter for a storage tank after the tank has been permanently closed or, if corrective action is required, after corrective action has been completed and the tank has been permanently closed in accordance with ss. ATCP 93.560 to 93.585 for underground tanks and ss. ATCP 93.460 to 93.470 for aboveground tanks.

ATCP 93.750 History History: CR 17-092: cr. Register October 2019 No. 766, eff. 11-1-19.

ATCP 93.753 ATCP 93.753 Bankruptcy or other incapacity of owner or operator or provider of financial assurance.

ATCP 93.753(1) (1) Within 10 days after commencement of a proceeding under Title 11, U.S. Code, naming an owner or operator as debtor, the owner or operator shall notify the department by certified mail of such commencement and submit the appropriate forms listed in s. ATCP 93.745 (2) documenting current financial responsibility.

ATCP 93.753(2) (2) Within 10 days after commencement of a proceeding under Title 11, U.S. Code, naming a guarantor providing financial assurance as debtor, such guarantor shall notify the owner or operator by certified mail of such commencement as required under the terms of the guarantee specified in s. ATCP 93.713.

ATCP 93.753(2g) (2g) Within ten days after commencement of a voluntary or involuntary proceeding under Title 11, U. S. Code, naming a local government owner or operator as debtor, the local government owner or operator shall notify the department by certified mail of such commencement and submit the appropriate forms listed in s. ATCP 93.745 (2) documenting current financial responsibility.

ATCP 93.753(2r) (2r) Within ten days after commencement of a voluntary or involuntary proceeding under Title 11, U.S. Code, naming a guarantor providing a local government financial assurance as debtor, such guarantor shall notify the local government owner or operator by certified mail of such commencement as required under the terms of the guarantee specified in s. ATCP 93.733.

ATCP 93.753(3) (3) 

ATCP 93.753(3)(a) (a) An owner or operator who obtains financial assurance by a mechanism other than the financial test of self-insurance shall be deemed to be without the required financial assurance in the event of a bankruptcy or incapacity of its provider of financial assurance, or a suspension or revocation of the authority of the provider of financial assurance to issue a guarantee, insurance policy, risk retention group coverage policy, surety bond, letter of credit, or state-required mechanism.

ATCP 93.753(3)(b) (b) The owner or operator shall obtain alternate financial assurance as specified in this subchapter within 30 days after receiving notice of such an event.

ATCP 93.753(3)(c) (c) If the owner or operator does not obtain alternate coverage within 30 days after such notification, he or she shall notify the department.