ATCP 93.705(6)(a)
(a) Owners or operators shall review the amount of aggregate assurance provided whenever additional petroleum storage tank systems are acquired or installed.
ATCP 93.705(6)(b)
(b) If the number of petroleum storage tank systems for which assurance is needed exceeds 100, the owner or operator shall demonstrate financial responsibility in the amount of at least $2 million of annual aggregate assurance by the anniversary of the date on which the mechanism demonstrating financial responsibility became effective.
ATCP 93.705(6)(c)
(c) If assurance is being demonstrated by a combination of mechanisms, the owner or operator shall demonstrate financial responsibility in the amount of at least $2 million of annual aggregate assurance by the first-occurring effective date anniversary of any one of the mechanisms combined, other than a financial test or guarantee, to provide assurance.
ATCP 93.705(7)
(7) The amounts of assurance required in this section exclude legal defense costs.
ATCP 93.705(8)
(8) The required per-occurrence and annual aggregate coverage amounts do not in any way limit the liability of the owner or operator.
ATCP 93.705 History
History: CR 17-092: cr.
Register October 2019 No. 766, eff. 11-1-19; (2) (intro.), (a), (b), (c) renum. to (2) (b), 1., 2., (a) under s. 13.92 (4) (b) 1., Stats., and correction in (2) (a), as renumbered, made under s. 35.17, Stats.,
Register October 2019 No. 766.
ATCP 93.707
ATCP 93.707 Allowable mechanisms and combinations of mechanisms. ATCP 93.707(1)
(1) Subject to the limitations of subs.
(3) and
(4), an owner or operator may use any one or combination of the mechanisms listed in ss.
ATCP 93.710 to
93.735 to demonstrate financial responsibility under this subchapter for one or more storage tank systems.
ATCP 93.707(2)
(2) Subject to the limitations of subs.
(3) and
(4), a local government owner or operator may use any one or combination of the mechanisms listed in ss.
ATCP 93.727 to
93.735 to demonstrate financial responsibility under this subchapter for one or more storage tank systems.
ATCP 93.707(3)
(3) An owner or operator may use a guarantee or surety bond to establish financial responsibility only if “for value received” is included in the guarantee or surety bond mechanisms.
ATCP 93.707(4)
(4) An owner or operator may use self-insurance in combination with a guarantee only if, for the purpose of meeting the requirements of the financial test under this subchapter, the financial statements of the owner or operator are not consolidated with the financial statements of the guarantor.
ATCP 93.707 History
History: CR 17-092: cr.
Register October 2019 No. 766, eff. 11-1-19.
ATCP 93.710
ATCP 93.710 Financial test of self-insurance. ATCP 93.710(1)(1)
To use the financial test of self-insurance to meet the financial responsibility requirements of s.
ATCP 93.705, an owner or operator, or guarantor, or both, shall meet the criteria of either sub.
(2) or
(3) based on year-end financial statements for the latest completed fiscal year.
ATCP 93.710(2)(a)
(a) The owner or operator, or guarantor, or both, shall have a tangible net worth of at least 10 times each one of the following:
ATCP 93.710(2)(a)1.
1. The total of the applicable aggregate amount required by s.
ATCP 93.705, based on the number of storage tank systems for which a financial test is used to demonstrate financial responsibility to the department.
ATCP 93.710(2)(a)2.
2. The sum of the corrective action cost estimates, the current closure and post-closure care cost estimates, and amount of liability coverage for which a financial test is used to demonstrate financial responsibility to the department.
ATCP 93.710(2)(a)3.
3. The sum of current plugging and abandonment cost estimates for which a financial test is used to demonstrate financial responsibility to the department.
ATCP 93.710(2)(b)
(b) The owner or operator, or guarantor, or both, shall have a tangible net worth of at least $10 million.
ATCP 93.710(2)(c)
(c) The owner or operator, or guarantor, or both, shall have a letter signed by the chief financial officer as specified in sub.
(4).
ATCP 93.710(2)(d)
(d) The owner or operator, or guarantor, or both, shall do one of the following:
ATCP 93.710(2)(d)1.
1. File financial statements annually with the U.S. securities and exchange commission, energy information administration, or rural utilities service.
ATCP 93.710(2)(d)2.
2. Report annually the firm's tangible net worth to Dun and Bradstreet, if Dun and Bradstreet has assigned the firm a financial strength rating of 4A or 5A.
ATCP 93.710(2)(e)
(e) The firm's year-end financial statements, if independently audited, may not include an adverse auditor's opinion, a disclaimer of opinion, or a going concern qualification.
ATCP 93.710(3)(a)
(a) The owner or operator, or guarantor, or both, shall meet the financial test requirements of
40 CFR 264.147 (f) (1), substituting the appropriate amounts specified in s.
ATCP 93.705 (2) or
(3) for the amount of liability coverage each time specified in that section.
ATCP 93.710(3)(b)
(b) The fiscal year-end financial statements of the owner or operator, or guarantor, or both, shall be examined by an independent certified public accountant and be accompanied by the accountant's report of the examination.
ATCP 93.710(3)(c)
(c) The firm's year-end financial statements may not include an adverse auditor's opinion, a disclaimer of opinion, or a going concern qualification.
ATCP 93.710(3)(d)
(d) The owner or operator, or guarantor, or both, shall have a letter signed by the chief financial officer as specified in sub.
(4).
ATCP 93.710(3)(e)
(e) If the financial statements of the owner or operator or guarantor, or both, are not submitted annually to the U.S. securities and exchange commission, energy information administration or rural utilities service, the owner or operator, or guarantor, or both, shall obtain a special report by an independent certified public accountant stating all of the following:
ATCP 93.710(3)(e)1.
1. The accountant has compared the data that the letter from the chief financial officer specifies as having been derived from the latest year-end financial statements of the owner or operator, or guarantor, or both, with the amounts in such financial statements.
ATCP 93.710(3)(e)2.
2. In connection with that comparison, no matters came to the attention of the accountant which caused him or her to believe that the specified data should be adjusted.
ATCP 93.710(4)
(4) To demonstrate that the financial test is met under sub.
(2) or
(3), the chief financial officer of the owner or operator, or guarantor, 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 worded exactly as found in
40 CFR 280.95 (d) except for the following:
ATCP 93.710(4)(a)
(a) The instructions in brackets in the letter shall be replaced by the relevant information and the brackets deleted.
ATCP 93.710(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 93.710(4)(b)1.
1. Reference in the letter to underground tanks shall be amended to refer to aboveground tanks.
ATCP 93.710(5)
(5) If an owner or operator using the test to provide financial assurance finds that he or she 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 93.710(6)
(6) The department may require reports of financial condition at any time from the owner or operator, or guarantor, or both. If the department finds, on the basis of such reports or other information, that the owner or operator, or guarantor, or both, no longer meet the financial test requirements of either sub.
(2) or
(3) and sub.
(4), the owner or operator shall obtain alternate coverage within 30 days after notification of such a finding.
ATCP 93.710(7)
(7) If the owner or operator fails to obtain alternate assurance within 150 days of finding that he or she 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 he or she no longer meets the requirements of the financial test, the owner or operator shall notify the department of such failure within 10 days.
ATCP 93.710 History
History: CR 17-092: cr.
Register October 2019 No. 766, eff. 11-1-19; correction in (7) made under s.
35.17, Stats.,
Register October 2019 No. 766.
ATCP 93.713(1)(1)
To use a guarantee to meet the financial responsibility requirements of s.
ATCP 93.705, an owner or operator shall obtain a guarantee that conforms to the requirements of this section. The guarantor shall be a firm that is engaged in a substantial business relationship with the owner or operator and issues the guarantee as an act incident to that business relationship or the guarantor shall be a firm that meets at least one of the following requirements:
ATCP 93.713(1)(a)
(a) The firm possesses a controlling interest in the owner or operator.
ATCP 93.713(1)(c)
(c) The firm is controlled through stock ownership by a common parent firm that possesses a controlling interest in the owner or operator.
ATCP 93.713(2)(a)
(a) Within 120 days of the close of each financial reporting year, the guarantor shall demonstrate that it meets the financial test criteria of s.
ATCP 93.710 based on year-end financial statements for the latest completed financial reporting year by completing the letter from the chief financial officer described in s.
ATCP 93.710 (4), and the guarantor shall deliver the letter to the owner or operator.
ATCP 93.713(2)(b)
(b) If the guarantor fails to meet the requirements of the financial test at the end of any financial reporting year, within 120 days of the end of that financial reporting year, the guarantor shall send notice by certified mail to the owner or operator before cancellation or non-renewal of the guarantee.
ATCP 93.713(2)(c)
(c) If the department notifies the guarantor that he or she no longer meets the requirements of the financial test of s.
ATCP 93.710 (2) or
(3), the guarantor shall notify the owner or operator within 10 days of receiving such notification from the department.
ATCP 93.713(2)(d)
(d) Under either par.
(b) or
(c), 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.
ATCP 93.713(3)(a)
(a) The instructions in brackets in the guarantee shall be replaced by the relevant information and the brackets deleted.
ATCP 93.713(3)(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 93.713(3)(b)1.
1. Reference in the guarantee to underground tanks shall be amended to refer to aboveground tanks.
ATCP 93.713(4)(a)
(a) An owner or operator who uses a guarantee to satisfy the requirements of s.
ATCP 93.705 shall establish a standby trust fund when the guarantee is obtained.
ATCP 93.713(4)(b)
(b) Under the terms of the guarantee, all amounts paid by the guarantor under the guarantee shall be deposited directly into the standby trust fund in accordance with instructions from the department under s.
ATCP 93.747.
ATCP 93.713 History
History: CR 17-092: cr.
Register October 2019 No. 766, eff. 11-1-19.
ATCP 93.715
ATCP 93.715 Insurance and risk retention group coverage. ATCP 93.715(1)(1) To use insurance and risk retention group coverage to meet the financial responsibility requirements of s.
ATCP 93.705, an owner or operator shall obtain liability insurance that conforms to the requirements of this section from a qualified insurer or risk retention group. Such insurance may be in the form of a separate insurance policy or an endorsement to a current insurance policy.
ATCP 93.715(2)
(2) “
Termination,” as used in the forms required under this section, means only those changes that would result in a gap in coverage as where the insured has not obtained required coverage or has obtained required coverage with a different retroactive date than the retroactive date of the original policy.
ATCP 93.715(3)
(3) Each insurance policy shall be issued by an insurer or a risk retention group that is licensed to transact the business of insurance or eligible to provide insurance as an excess or surplus lines insurer in one or more states.
ATCP 93.715(4)(a)
(a) The instructions in brackets in the endorsement or certificate shall be replaced by the relevant information and the brackets deleted.
ATCP 93.715(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 93.715(4)(b)1.
1. Reference in the endorsement or certificate to underground tanks shall be amended to refer to aboveground tanks.
ATCP 93.715(6)(a)
(a) If the insurer or group terminates coverage for any reason, the insurer or group shall notify the department of such termination at the same time the insured is notified.
ATCP 93.715(6)(am)
(am) If the operator is the insured and the insurance lapses or is terminated, the insurer or group shall notify the owner of the property at the same time the insured is notified.
ATCP 93.715(6)(b)
(b) If the insured allows coverage to lapse or changes insurers or groups, the insured shall notify the department within 10 days.
ATCP 93.715 History
History: CR 17-092: cr.
Register October 2019 No. 766, eff. 11-1-19.
ATCP 93.717(1)(1)
To use a surety bond to meet the financial responsibility requirements of s.
ATCP 93.705, an owner or operator shall obtain a surety bond that conforms to the requirements of this section. The surety company issuing the bond shall be listed as an acceptable surety on federal bonds in the latest Circular 570 of the U.S. department of the treasury.
ATCP 93.717(2)(a)
(a) The instructions in brackets in the surety bond shall be replaced by the relevant information and the brackets deleted.
ATCP 93.717(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 93.717(2)(b)1.
1. Reference in the surety bond to underground tanks shall be amended to refer to aboveground tanks.
ATCP 93.717(3)
(3) Under the terms of the bond, the surety shall be liable on the bond obligation when the owner or operator fails to perform as guaranteed by the bond. In all cases, the surety's liability is limited to the per-occurrence and annual aggregate penal sums.
