Rule-making notices
Notice of Hearing
Wisconsin Emergency Management is proposing to repeal ch.
WEM 4, relating to the hazardous materials transportation registration program and to amend ch.
WEM 6 relating to reimbursement procedures for regional and local emergency response teams.
This pubic hearing is being held in order to comply with administrative rule procedures which require a public hearing to be held on proposed rules.
NOTICE IS HEREBY GIVEN that pursuant to ss.
166.20 (2) (a),
(b),
(bm) and
(bs), and
227.11 (2) (a), Stats., and interpreting ss.
166.20 (1) (f) (fm) (g),
(ge) (gi) (k),
(2) (bm) and
(bs),
166.215 (2) and
(3) and
166.22, Stats., Wisconsin Emergency Management will hold a public hearing to consider the repeal of ch.
WEM 4 relating to the hazardous materials transportation program and to consider amendments to ch.
WEM 6 relating to reimbursement procedures for regional and local emergency response teams. The public hearing is scheduled as follows:
Hearing Date, Time and Location
Date: August 27, 2002
Time: 10:00 a.m.
Location: Department of Military Affairs
Auditorium
2400 Wright Street
Madison, Wisconsin
Persons making oral statements are requested to submit their comments in writing either at the time of the hearing or no later than August 30, 2002. Persons unable to make an oral statement may submit written comments which will have the same weight and effect as oral statements presented at the hearings. All written comments should be submitted to William Clare, Wisconsin Emergency Management, 2400 Wright Street, P.O. Box 7865, Madison, WI 53707-7865 and must be received no later than August 30, 2002. Persons with questions regarding this proposed rule may contact William Clare at the above address or phone 608-242-3220.
The hearing site is fully accessible to people with disabilities.
Analysis Prepared By Wisconsin Emergency Management
Plain Language Summary
The statutory authority for ch. WEM 4, relating to a hazardous materials transportation registration program, no longer exists, and this proposal repeals ch. WEM 4 in its entirety. The proposal to amend ch. WEM 6 would modify reimbursement procedures to reflect a change in statutory language allowing reimbursement for potential releases of hazardous materials as well as to actual releases. It would also require regional and local response teams to utilize an agency-approved hazardous materials incident response matrix to be eligible for reimbursement under ch.
WEM 6 and would establish limits for reimbursement of potential releases. The proposed change would also clarify that administrative costs are eligible for reimbursement and that costs recovered from responsible parties would be placed in the emergency response supplement under s.
20.465 (3) (dr) Stats.
SECTION 1. Chapter WEM 4 is repealed.
SECTION 2. WEM 6.02 (1), (2) and (12) are amended to read:
WEM 6. 02 (1) “Authorized level A response team" means a regional emergency response team, a member of such team and a local agency that contracts with the division for the provision of regional response team services pursuant to a designation under s.
166.215 (1), Stats.
WEM 6.02 (2) “Authorized level B response team" means a
local county emergency response team, a member of such a team, and the city, county, village or town that contracts to provide the emergency response team to the county pursuant to a designation under s.
166.21 (2m) (e), Stats.
WEM 6.02 (12) “Responsible party" means any person, as defined in s.
299.01(10), Stat. or
42 USC 9607(a), who
possesses or controls a hazardous substance that is released or discharged or who causes the release or discharge of a hazardous substance is responsible for the emergency involving a release or potential release of a hazardous substance under s. 166.215 (3) or 166.22 (4), Stats. or a person who is found to have abandoned containers, as defined under s.
292.41 (1), Stats., that are releasing or discharging a hazardous substance to which a response team was called to respond.
SECTION 3. WEM 6.04 (1), (2), (3) are amended to read:
WEM 6.04 (1) Reimbursement for vehicles and apparatus at uniform rates established in the contracts for regional hazardous material response team services or the rate established by the reviewing entity for the authorized level B response Team;.
WEM 6.04 (2) Response team personnel expenses which may reflect replacement personnel costs and indirect charges and costs for wage, fringe, death and duty disability retirement benefits; and.
WEM 6.04 (3) Necessary and reasonable emergency expenses related to response team services rendered based on actual expenditures;.
SECTION 4. WEM 6.04 (4) is created to read:
WEM 6.04 (4) Administrative costs incurred to collect response costs from a responsible party.
(a) For a level B response to an emergency in which there is a potential release of a hazardous substance, the maximum eligible reimbursement cost may not exceed $500 for the initial response assessment except as provided under s.
6.04 (4) (b).
(b) Costs that exceed $500 for a level B response to an emergency, in which there is a potential release of a hazardous substance and for which a hazardous substance is present, shall be justified and documented.
(c)
Response teams are not eligible for reimbursement costs that exceed $500 for level B responses where the bill of lading or manifest indicate that a hazardous substance is not present and for which the bill of lading or manifest is readily accessible to the response team during the emergency response.
SECTION 5. WEM 6.05 (4) (a), (b), (c) are renumbered WEM 6.05 (4) (b), (c), (d).
SECTION 6. WEM 6.05 (4) (a) is created to read:
WEM 6.05 (4) (a) The hazardous materials incident response matrix used by a regional or local response team to determine the initial response to an emergency.
SECTION 7. WEM 6.05 (5) (g) is created to read:
WEM 6.05 (5) (g) The hazardous materials incident response matrix was used by the regional or local emergency response team to determine the appropriate initial response to the emergency.
SECTION 8. WEM 6.12 is amended to read:
If costs subsequently are recovered from responsible parties or other sources after the response team has received reimbursement from the division, the response team shall return the recovered costs to the division, for deposit into the state transportation fund emergency response supplement under s. 20.465 (3) (dr) Stats.
SECTION 9. WEM 6.13 (1) (intro) is created to read: WEM 6.13 (1) (intro) The regional and local response team appeals process is as follows:
SECTION 10. WEM 6.13 (1) to (5) are renumbered to read 6.13 (1) (a) to (e):
SECTION 11. WEM 6.13 (2) is created to read:
WEM 6.13 (2) The responsible party appeals process is as follows:
(a)
A responsible party shall have 30 days after a final determination by the reviewing entity under s.
166.22 (5) (c) in which to file an appeal with the division.
(b)
A responsible party may appeal emergency response costs of a potential release of a hazardous substance for which a hazardous substance is present that exceed $500.
(c)
Following an appeal to the division, a responsible party may then request a problem resolution process in which the adjutant general of the department of military affairs reviews the response team claim and issues a decision based on those materials or meets with the parties to negotiate an acceptable resolution.
SECTION 12. WEM 6.13 (note) is amended to read:
Note: A claim for reimbursement form, DMA Form 96 (4/97) and, an expedited reimbursement claim form, DMA Form 59 (4/97), and a Hazardous Materials Incident Response Matrix, DMA Form 1060, can be obtained by contacting the Hazardous Materials Safety/Transportation Coordinator, Wisconsin Emergency Management, 2400 Wright Street, Room 213, P.O. Box 7865, Madison, WI 53707-7865, telephone 608-242-3228. The completed reimbursement claim, Hazardous Materials Incident Response Matrix, and supporting documentations shall be mailed to the Hazardous Materials Safety/Transportation coordinator, Wisconsin Emergency Management, 2400 Wright Street, Room 213, P.O. Box 7865, Madison, WI 53707-7865.
Fiscal Estimate
The statutory authority for ch. WEM 4 has been repealed. The previous version of ch. WEM 4 was determined to be unconstitutional by the Wisconsin Court of Appeals and the current version has not been enforced since that time. There are no costs associated with the repeal of ch.
WEM 4. The amendments to ch.
WEM 6 allow for the State of Wisconsin and local and regional emergency response teams to collect emergency response costs from the responsible party in the event of a potential release of a hazardous material. A responsible party is currently responsible for costs associated with the emergency response to a release of a hazardous material. This rule clarifies that necessary response costs include the potential release of a hazardous material. Money collected by the State of Wisconsin under this rule will be deposited into the emergency response supplement. Money collected by response teams would be used to offset their costs. There are several such incidents annually and the ability to collect these costs means that they would be paid by the responsible party if identified and able to pay. It is estimated that costs to respond to a potential release would typically be $500 or less. This could mean a decrease in payments from the emergency response supplement.
Initial Regulatory Flexibility Analysis
The statutory authority for ch. WEM 4 has been repealed. The previous version of ch. WEM 4 was determined to be unconstitutional by the Wisconsin Court of Appeals and the current version has not been enforced since that time. The repeal of ch. WEB 4 will have no effect on small business.
The amendments to WEM 6 allow for the State of Wisconsin and local and regional emergency response teams to collect emergency response costs from the responsible party in the event of a potential release of a hazardous material. A responsible party is currently responsible for costs associated with the emergency response to a release of a hazardous material. This rule clarifies that necessary response costs include the potential release of a hazardous material. It is estimated that costs to respond to a potential release would typically be $500 or less. To date there have not been more than 3 such incidents annually. This rule change will not have a significant economic impact on a substantial number of small businesses.
Notice of Hearing
Notice is hereby given that pursuant to s.
977.02 (2m) and
977.02 (3) Stats., and interpreting s.
977.07 Stats., the Office of the State Public Defender will hold a public hearing at 315 North Henry Street, 2
nd Floor, in the city of Madison, Wisconsin, on the
26th day of August 2002, from 1:00 p.m. to 3:00 p.m. to consider the amendment of a rules, ss.
PD 2.08 (3),
3.038 (1) (b),
3.038 (1) (c),
2.01,
2.02,
2.03,
2.08,
3.03,
3.038 (1) (a),
3.039,
3.05,
3.055 and
3.06,
related to determinations of indigency. Reasonable accommodations will be made at the hearing for persons with disabilities.
Analysis Prepared by the Office of the State Public Defender
The proposed changes to the administrative code comply with ch.
977, Stats. and serve to clarify and simplify the process of determining the financial eligibility of prospective clients. A number of the amendments replace references to indigency or indigent with eligibility or eligible. Chapter
977 provides a statutory financial eligibility standard for appointment of counsel by the agency, which is different from a constitutional determination of indigency by a court. The purpose of these amendments is to resolve the confusion between the constitutional concept of indigency and the use of the word in the context of state public defender representation. The amendments to s.
PD 3.03 (1) (c) and
3.03 (2) are intended to simplify the form and process of eligibility determinations. Simplification of the form and process of eligibility determinations allows more cost-effective use of staff time. The amendments to s.
PD 3.03 (1) (c) affect few applicants according to our database of eligibility determinations. In addition, a survey of lending institutions has demonstrated that money is rarely loaned on the basis of vehicles of $10,000 or less in equity. The amendments are consistent with the treatment of non-liquid assets by W2. Likewise, the amendments to s.
PD 3.03 (2) remove expenses that are rarely determinative of eligibility. Further, if these debts are reduced to formal court judgments they may be considered under the general category of court-ordered obligations. The amendment to s.
PD 3.055 simply clarifies that the state public defender should treat voluntary reduction in hours the same as quitting a job when the action is motivated by the intent to qualify for state public defender assigned counsel. The repeal of s.
PD 3.038 (1) (b) conforms the rule to current law and practice. The repeal of s.
PD 3.038 (1) (b) reflects the fact that the concept of partially indigent is no longer relevant to adult applicants for state public defender assignment of counsel. The concept of a partially indigent applicant predated the collections program initiated in 1996. Prior to 1996, applicants found indigent paid nothing and applicants found partially indigent were required to pay something towards the cost of representation. Under the current collections program all eligible applicants are subject to the collections program. The amendment to s.
PD 3.05 (1) conforms the rule to current law and practice. At one time children entitled to appointment of counsel under the juvenile or mental health laws were required to complete an eligibility evaluation. Current law does not require a determination of eligibility for children entitled to appointment of counsel. The adult applicant for appointment of counsel who lacks the mental capacity to understand the contents of the eligibility evaluation form or the process presents a difficult situation for staff. Unlike the applicant who is unwilling to provide the required information, the mentally ill or developmentally disabled client is usually unable to provide reliable information. It is often possible for staff to obtain reliable information from family or medical staff regarding the person's income and assets. Providing this exception to subsection (1) allows staff to be more efficient in their eligibility determinations.
Statute interpreted: s.
977.07, Stats.
