Chapter ATCP 93

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.

ATCP 93.753(4) (4) Within 30 days after receipt of notification that the state fund or other state assurance has become incapable of paying for assured corrective action or third-party compensation costs, the owner or operator shall obtain alternate financial assurance.

ATCP 93.753 History History: CR 17-092: cr. Register October 2019 No. 766, eff. 11-1-19.

ATCP 93.755 ATCP 93.755 Replenishment of guarantees, letters of credit, or surety bonds.

ATCP 93.755(1) (1) If at any time after a standby trust is funded upon the instruction of the department with funds drawn from a guarantee, letter of credit, or surety bond, and the amount in the standby trust is reduced below the full amount of coverage required, the owner or operator shall comply with one of the following by the anniversary date of the financial mechanism from which the funds were drawn:

ATCP 93.755(1)(a) (a) The owner or operator shall replenish the value of financial assurance to equal the full amount of coverage required.

ATCP 93.755(1)(b) (b) The owner or operator shall acquire another financial assurance mechanism for the amount by which funds in the standby trust have been reduced.

ATCP 93.755(4) (4) For purposes of this section, the full amount of coverage required is the amount of coverage to be provided under s. ATCP 93.705. If a combination of mechanisms was used to provide the assurance funds that were drawn upon, replenishment shall occur by the earliest anniversary date among the mechanisms.

ATCP 93.755 History History: CR 17-092: cr. Register October 2019 No. 766, eff. 11-1-19; (1), (2), (3) renum. to (1) (intro.), (a), (b) under s. 13.92 (4) (b) 1., Stats., and correction in (1) (intro.) made under s. 35.17, Stats., Register October 2019 No. 766.

subch. VIII of ch. ATCP 93 Subchapter VIII — Training for Operators of Underground Storage Tank Systems

ATCP 93.800 ATCP 93.800 Purpose. The purpose of this subchapter is to implement the operator-training requirements issued by the U.S. environmental protection agency in response to the federal Energy Policy Act of 2005.

ATCP 93.800 Note Note: The EPA operator-training requirements are available through the following Web site: https://www.epa.gov/ust/operator-training-minimum-training-requirements-and-training-options.

ATCP 93.800 History History: CR 17-092: cr. Register October 2019 No. 766, eff. 11-1-19.

ATCP 93.805 ATCP 93.805 Scope. This subchapter applies to all underground storage tank systems that are required by s. ATCP 93.145 to have a permit to operate from the department.

ATCP 93.805 Note Note: This subchapter generally does not specify operation or maintenance requirements. For applicable operation or maintenance requirements, refer to previous sections of this chapter, such as s. ATCP 93.605 (1) (a), which requires fuel dispensing facilities to have periodic and annual inspections and maintenance in accordance with PEI RP500 and RP900.

ATCP 93.805 History History: CR 17-092: cr. Register October 2019 No. 766, eff. 11-1-19.

ATCP 93.810 ATCP 93.810 Definitions. In this subchapter:

ATCP 93.810(1) (1) “Class A operator” means the individual who has primary responsibility to operate and maintain the UST system in accordance with applicable requirements. The Class A operator typically manages resources and personnel, such as establishing work assignments to achieve and maintain compliance with regulatory requirements.

ATCP 93.810 Note Note: In general, this individual focuses on the broader aspects of the statutory and regulatory requirements and standards necessary to properly operate and maintain an underground storage tank system, such as the requirements in 40 CFR 280 and this chapter.

ATCP 93.810(2) (2) “Class B operator” means the individual who has day-to-day responsibility for implementing applicable regulatory requirements. The Class B operator typically implements in-field aspects of operation, maintenance, and record keeping for the UST system.

ATCP 93.810 Note Note: This individual generally focuses on field implementation of applicable UST requirements and the day-to-day aspects of operating, maintaining, and record keeping for USTs at one or more facilities.

ATCP 93.810(3) (3) “Class C operator” means the individual responsible for initially addressing emergencies presented by a spill or release from an UST system. The Class C operator typically controls or monitors the dispensing or sale of regulated substances.

ATCP 93.810 Note Note: This individual typically is the first line of response to alarms and to events indicating emergency conditions. Not all employees of the facility are necessarily Class C operators.

ATCP 93.810 History History: CR 17-092: cr. Register October 2019 No. 766, eff. 11-1-19.

ATCP 93.820 ATCP 93.820 Designation of Class A, Class B, and Class C operators.

ATCP 93.820(1) (1) Each new or existing underground storage tank system or group of underground storage tank systems at a facility shall have a Class A operator, a Class B operator, and a Class C operator, as designated by the owner or operator and as accredited in accordance with this subchapter.

ATCP 93.820 Note Note: This subchapter does not preclude any individual from being designated to more than one of the operator classes, provided the individual complies with the requirements for each designated class.

ATCP 93.820 Note Note: This subchapter does not preclude any individual from being a designated operator for more than one facility that includes an underground storage tank system.

ATCP 93.820 Note Note: This subchapter does not preclude an owner or operator from contracting with another party to provide Class A, Class B, and Class C operators.

ATCP 93.820 Note Note: There may be occasions when a Class A, Class B, or Class C operator will not be present at a facility. For example, operators are frequently not present at unmanned facilities, such as emergency generators at telecommunication towers and card lock/card access facilities. However, these operators are still responsible for operation and maintenance activities or responding to emergencies or alarms and are still subject to the requirements of this subchapter.

ATCP 93.820(3) (3) If the owner and operator of the tank system are separate persons, either the owner or operator may designate the Class A, Class B, and Class C operators at the facility, but both the owner and the operator are under the same responsibility under this section to ensure that Class A, Class B, and Class C operators are designated.

ATCP 93.820 History History: CR 17-092: cr. Register October 2019 No. 766, eff. 11-1-19; (1) (title) repealed under s. 13.92 (4) (b) 2., Stats., Register October 2019 No. 766.

ATCP 93.830 ATCP 93.830 Responsibilities of Class A, Class B, and Class C operators.

ATCP 93.830(1) (1) Class A operators. Responsibilities of a Class A operator include all of the following:

ATCP 93.830(1)(a) (a) Compliance with tank system registration and permit to operate requirements.

ATCP 93.830(1)(b) (b) Managing resources and personnel, such as establishing work assignments, to achieve and maintain compliance with regulatory requirements.

ATCP 93.830(1)(c) (c) Ensuring that appropriate individuals do all of the following:

ATCP 93.830(1)(c)1. 1. Properly operate and maintain the underground storage tank system.

ATCP 93.830(1)(c)2. 2. Maintain appropriate records.

ATCP 93.830(1)(c)3. 3. Receive training to operate and maintain the underground storage tank system and keep records.

ATCP 93.830(1)(c)4. 4. Properly respond to emergencies or alarms relating to spills, leaks or releases from the underground storage tank system.

ATCP 93.830(1)(c)5. 5. Make financial responsibility documents available to the authorized agent or the department as required.

ATCP 93.830(2) (2) Class B operators. Responsibilities of a Class B operator include ensuring that all of the following occur:

ATCP 93.830(2)(a) (a) Requirements for leak or release detection methods, record keeping, and reporting are met.

ATCP 93.830(2)(b) (b) Requirements for leak or release prevention equipment, record keeping, and reporting are met.

ATCP 93.830(2)(c) (c) All relevant equipment complies with performance standards.

ATCP 93.830(2)(cm) (cm) Monthly periodic inspections required under PEI RP 500 and RP 900 per ss. ATCP 93.500 (8) and ATCP 93.605 (1) are performed or reviewed monthly by a Class B operator.

ATCP 93.830(2)(d) (d) Appropriate individuals are trained to properly respond to emergencies or alarms relating to spills, leaks or releases from the underground storage tank system.