2. Statutory Authority.
3. Explanation of Agency Authority.
Section
101.02 (1) of the Statutes requires the Department to adopt reasonable rules relative to the exercise of the Department's powers and authorities. Section
101.02 (15) (j) requires the Department to protect public safety by promulgating reasonable rules for construction, repair and maintenance of places of employment and public buildings, Section
101.09 (3) (a) requires the Department to promulgate rules for protecting the waters of the State from improper storage, handling and use of flammable or combustible liquids or federally regulated hazardous substances; and requires those rules to include construction and maintenance requirements related to the prevention of leaks. Section
101.09 (3) (c) authorizes the Department to promulgate rules that require certification of persons who install or inspect tanks which are used for storing these liquids or substances. Section
101.143 (2) (g) authorizes the Department to promulgate requirements for the registration of persons who provide consulting services relating to cleanup of properties contaminated by petroleum-product discharges. Section
101.19 (1) requires the Department to fix and collect fees for offsetting the cost of determining and certifying the competency of inspectors. Section
227.11 (2) (a) authorizes the Department to promulgate rules interpreting the provisions of the statutes that the Department enforces or administers.
4. Related Statute or Rule.
Chapter
Comm 10 of the
Wisconsin Administrative Code provides fire and life safety, and environmental protection, by regulating the storage, display, installation, operation, use, maintenance and transportation of flammable, combustible and hazardous liquids; and by regulating the equipment, facilities and buildings that are used to store, transfer and dispense those liquids. Chapter
Comm 47 contains requirements for reimbursing eligible costs that are incurred because of a petroleum-product discharge from a storage system.
5. Plain Language Analysis.
Chapter
Comm 5 contains the Department's rules for issuing numerous credentials that businesses and individuals are either mandated or permitted to obtain. These credentials include certifications and registrations that relate to safe storage of flammable, combustible, and hazardous liquids, and to cleanup of properties contaminated by petroleum-product discharges.
The proposed rules would primarily modify chapter Comm 5 by creating (1) a certification category for individuals who conduct cathodic protection testing of any tank system that will hold flammable, combustible, or hazardous liquids which are regulated by chapter Comm 10; and (2) a certification category for individuals who design or install cathodic protection systems for those tank systems. The proposed rules would also limit this testing, design, and installation to individuals who are certified under these rules.
Other substantive changes relating to chapter Comm 10 in the proposed rules would (1) modify several specialty credential responsibilities by deleting outdated activities, and adding activities that have proven to better reflect the nature of the work; (2) remove references to past dates that have no relationship to current-day credential qualifications or administration; (3) eliminate continuing-education requirements from three specialties because the corresponding technical aspects do not change appreciably, and continuing-education opportunities within the industry are limited; (4) shorten the approval duration for continuing-education courses, from five years to three, unless otherwise specified in an approval letter; (5) require departmental notification if an approved, continuing education course is discontinued or modified; (6) no longer allow renewal of credentials after they expire, except by complying with all of the requirements for new applicants; (7) expand the reasons for denial, suspension or revocation of a credential to include failure to maintain required records, denial of Departmental access to requested records, failure to submit a required notice or report to the Department within a required time period, and submittal of false reports to the Department; (8) directly link all credentials for storage of flammable, combustible, and hazardous liquids to the corresponding requirements in chapter Comm 10; (9) modify the site assessor specialty credential terminology to better reflect the scope of the credential; and (10) require contractor liability insurance coverage for firms that install, remove, test, line, clean, or perform assessment, for tank systems.
The only proposed change that relates to chapter Comm 47 is expanding the reasons for denial, suspension or revocation of a credential to include (1) submittal of false reports to the Department, and (2) performance of activities that result in both exceeding a cost cap established by the department, and submittal of a claim to the department for the cost in excess of that cost cap.
6. Summary of, and Comparison With, Existing or Proposed Federal Regulations.
In Title 40 of the Code of Federal Regulations, under Section 20 of Part 280, a corrosion expert must design and oversee installation of field-installed cathodic protection systems for underground steel storage tanks and piping for flammable, combustible, and federally regulated hazardous liquids. Section 31 of
40 CFR 280 requires that a qualified Note: Complaint forms are available from the Department of Regulation and Licensing, Division of Enforcement, 1400 East Washington Avenue, P.O. Box 8935, Madison, Wisconsin 53708, or from the department's website at:
http://drl.wi.gov.
7. Comparison With Rules in Adjacent States.
In Michigan, corresponding cathodic protection professionals are required to be so certified by the National Association of Corrosion Engineers (NACE). Illinois requires the contractor to be State-certified to perform cathodic protection testing activities, and a NACE-certified individual must perform any design activity. Minnesota requires either Steel Tank Institute (STI) or NACE certification for cathodic protection testing activities, and a NACE-certified individual must perform any design activity. Iowa is revising their code to require certification from a recognized program, such as NACE or STI.
8. Summary of Factual Data and Analytical Methodologies.
Cathodic protection has proven to be highly effective for protecting underground metal tanks and piping from corrosion, provided the protection system is properly designed, installed, operated, maintained, and tested. Over the past several years, the Department has become aware of a significant number of cathodic protection systems that have not provided adequate protection or have caused interference with adjacent protection systems or structures.
Factory-installed, galvanic, cathodic protection systems are relatively simple in construction and operation. They include anodes that are sacrificed or consumed in the process of generating a protective current which is required to prevent corrosion. However, for older, existing underground storage tank systems, impressed current is often needed, because any dielectric coating provided on the tank is usually deteriorated or nonexistent, and a bare-metal or poorly coated tank system needs significantly more protective current than can be generated by a reasonable number of sacrificial anodes. An effective cathodic protection system must be engineered to provide the correct amount of protection – too little or too much protection can potentially be as defective as no protection.
Testing of cathodic protection systems is an important part of assuring the integrity of an underground storage tank system. However, soil and seasonal conditions affect the accuracy of cathodic protection testing methods, and site-specific factors can result in false and otherwise misleading indicators that a tank system is or is not adequately protected against corrosion. Improper interpretation of the test measurements has led to many false conclusions about whether a tank system is adequately protected or unprotected. Also, because no standard currently accounts for every situation and site-specific environmental and soil conditions, experience and training in corrosion control is warranted.
Requiring Wisconsin-based certification of cathodic protection professionals would enable Wisconsin to directly enforce the associated requirements, rather than depend on federal enforcement. This direct enforcement would provide further assurance that cathodic protection activities are performed at a minimum level of competency, following nationally established and accepted standards. In addition, Wisconsin certification would establish a database of certified individuals that could be used to communicate to the general public those individuals who are qualified to perform the work. The Department could also use this database for communicating new or proposed requirements or informational announcements to certified individuals.
The proposed changes for ch.
Comm 5 were developed with assistance from the Department's advisory committee for flammable, combustible and hazardous liquids. The members of that advisory committee are as follows:
Name Representing
Randy Sharvey Wisconsin Fire Inspectors Association
Erin Roth Wisconsin Petroleum Council
Tim Clay Wisconsin Federation of Cooperatives
Paul Knower WI Petroleum Equip. Contractors Assn.
Steve Danner Wisconsin Aviation Trades Association
Elizabeth Hellman Wisconsin Utilities Association
Gary Pate Wisconsin Insurance Alliance
Bill Noel Wisconsin Paper Council
Dale Safer Wisconsin Innkeepers
Bob Bartlett WI Petroleum Marketers & Convenience
Store Association
9. Analysis and Supporting Documents Used to Determine Effect on Small Business or in Preparation of an Economic Impact Report.
The primary document that was used to determine the effect of the proposed rules on small business was Part 280 of Title 40 of the Code of Federal Regulations. As noted in the above summary of federal regulations, the proposed Wisconsin credential requirements for corrosion experts and cathodic protection testers are essentially the same as the federal credential requirements in 40 CRF 280. Federal guidelines produced by the Small Business Administration's Office of Advocacy were also used in considering the potential effects on small business. The analysis for the expected effect of the new requirement for contractor liability insurance coverage was particularly based on outreach to current contractors.
10. Effect on Small Business.
The proposed rules are not expected to impose significant costs or other impacts on small businesses because the included requirements for performing cathodic protection activities, and the corresponding certifications, would not be significantly more restrictive than current, applicable federal requirements. Although the deletion of continuing-education requirements for three certification categories would reduce costs and impacts for individuals in those categories, that reduction may be offset by codifying a common practice of tank specialty firms, to have contractor liability insurance coverage. Outreach efforts to firms currently performing these activities indicate that this insurance is readily available, beneficial, and reasonably priced.
11. Agency Contact Person.
Sheldon Schall, Wisconsin Department of Commerce, Bureau of Petroleum Products and Tanks, P.O. Box 7837, Madison, WI, 53707-7837; telephone (608) 266-0956; e-mail
sheldon.schall@commerce.state.wi.us.
12. Place Where Comments Are to Be Submitted, and Deadline for Submission.
Comments on the proposed rules may be submitted by e-mail to
srockweiler@commerce.state.wi.us, no later than January 10, 2007. If e-mail submittal is not possible, written comments may be mailed, by the same date, to Sam Rockweiler, Department of Commerce, Division of Environmental and Regulatory Services, P.O. Box 14427, Madison, WI 53708-0427.
The proposed rules and an analysis of the rules are available on the Internet, by entering “Comm 5" in the search engine at the following Web site:
http://adminrules.wisconsin.gov. Paper copies may be obtained without cost from Linda Hahn at the Department of Commerce, Bureau of Petroleum Products and Tanks, P.O. Box 7837, Madison, WI, 53707-7837; telephone (608) 266-0762; e-mail
lhahn@commerce.state.wi.us or (608) 264-8777 (TTY). Copies will also be available at the public hearing.
Environmental Assessment
Notice is hereby given that the Department has considered the environmental impact of the proposed rules. In accordance with chapter Comm 1, the proposed rules are a Type III action. A Type III action normally does not have the potential to cause significant environmental effects and normally does not involve unresolved conflicts in the use of available resources. The Department has reviewed these rules and finds no reason to believe that any unusual conditions exist. At this time, the Department has issued this notice to serve as a finding of no significant impact.
Initial Regulatory Flexibility Analysis
1. Types of small businesses that will be affected by the rules.
Businesses that design, install, or test cathodic protection systems for underground steel storage tank systems; or businesses which currently do not have contractor liability insurance coverage and which install, remove, test, line, clean, or perform closure assessment, for tank systems regulated by chapter Comm 10. The proposed rules may also affect some individuals and firms during renewal of credentials related to storage of flammable, combustible and hazardous liquids; and may affect some providers of the continuing education courses that are utilized in conjunction with those renewals.
2. Reporting, bookkeeping and other procedures required for compliance with the rules.
Each applicant for becoming certified as a cathodic protection tester or corrosion expert must (1) complete and submit a Department-supplied application; and (2) complete and submit a Department-supplied application for recertification, for continuation of the certification beyond each two-year certification period.
3. Types of professional skills necessary for compliance with the rules.
No new professional skills would be necessary for compliance with the proposed rules.
4. Rules have a significant economic impact on small businesses.
No Rules not submitted to Small Business Regulatory Review Board
Fiscal Estimate
Although the proposed rules newly require submittal of fees for Departmental certification of corrosion experts and cathodic protection testers, the number of these individuals who are expected to receive these certifications is too small to result in significant changes in the Department's revenues and costs for administering and enforcing chapter Comm 5. Therefore, the proposed rules are not expected to have any significant fiscal effect on the Department.
The proposed rules are not expected to impose significant costs on the private sector because the included requirements for performing cathodic protection activities, and the corresponding certifications, would not be significantly more restrictive than current, corresponding federal requirements. Although the proposed deletion of continuing-education requirements for three certification categories would reduce costs for individuals in those categories, that reduction may be offset by codifying a common practice of tank specialty firms, to have contractor liability insurance coverage. Outreach efforts to firms currently performing these activities indicate that this insurance is readily available, commonly held, beneficial, and reasonably priced.
The small business regulatory coordinator for the Department of Commerce is Carol Dunn, who may be contacted at telephone (608) 267-0297, or by e-mail at
carol.dunn@wisconsin.gov.
Notice of Hearing
Transportation
NOTICE IS HEREBY GIVEN that pursuant to ss.
85.16,
343.02,
343.05 (4) (c),
343.06,
343.14 and
343.50, Stats., and interpreting ss.
340.01 (37) and
(40),
343.01 (2) (g),
343.05 (4) (b) and
(c),
343.06 (1) (k),
343.14 and
343.50 (2), Stats., the Department of Transportation will hold a public hearing in Room 254 of the Hill Farms State Transportation Building, 4802 Sheboygan Avenue, Madison, Wisconsin on the
8th day of January, 2007, at 1:30 PM, to consider the amendment of ch.
Trans 102, Wisconsin Administrative Code, relating to proof of identity.
An interpreter for the hearing impaired will be available on request for this hearing. Please make reservations for a hearing interpreter at least 10 days prior to the hearing.
Parking for persons with disabilities and an accessible entrance are available.
Analysis Prepared by the Department of Transportation
Explanation of agency authority:
2005 Wisconsin Act 126 requires that a person applying for a driver's license (DL) or identification card (ID) provide documentary proof of citizenship or legal presence in the United States. Altering the list of documents acceptable as proof of name and date of birth, identity, residency, and Social Security number will serve two purposes:
1. Making documents that could be used by persons without legal presence in this country unacceptable.
2. Conforming the list of acceptable documents to what is used other states and American Association of Motor Vehicle Administrator (AAMVA) standards. The federal government will likely use AAMVA standards to determine state compliance with REAL ID.
Current law also prohibits the Department from issuing a driver's license or identification card to any person who is not a resident. It should be noted that any nonresident of the United States may operate on an international driving permit, and a resident of another state may operate on a license issued by that other state for up to one year, and are exempt from licensing requirements of Chapter
343, Stats.
Plain language analysis: This proposed rule making limits the list of acceptable documents for proof of name and date of birth, identity, residency, and Social Security number to be consistent with other states and standards established by the American Association of Motor Vehicle Administrators (AAMVA). The rule making establishes a minimum duration stay for temporary visitors of one year for a driver's license or six months for an identification card and those applicants must have at least six or three months, respectively, of that authorized stay remaining to be eligible; temporary visitors are immediately eligible for those documents if their minimum legal stay is equal to or longer than those minimum durations.
Summary of, and preliminary comparison with, existing or proposed federal regulation: Adopting the AAMVA list of acceptable documents for proof of name and date of birth, identity, residency, and Social Security number moves Wisconsin towards compliance with the federal REAL ID Act (Public Law 109-013). REAL ID also requires that DL/IDs issued to temporary visitors expire on the date their authorized stay ends (i.e., a “temporary license").
Comparison with Rules in Adjacent States: All states will be required to comply with REAL ID by May 11, 2008 or their citizens will not be able to use their driver's license (DL) or identification card (ID) for any federal purpose such as boarding airplanes or entering federal buildings. For temporary visitors, surrounding states have the following requirements for minimum length of stay and temporary licenses:
Michigan: No legal presence required (no minimum length of stay or temporary license requirement). Michigan presumes that any person who obtains employment intends to remain in the state. MCLS 257.51a. Michigan law prohibits issuing a driver's license to a “foreign exchange student." MCLS 257.303(1)(h).
Minnesota: No minimum length of stay required to be eligible for a driver's license. Licenses for temporary visitors are issued for the same amount of time as citizens (i.e., four years), with an end date included on the license for the end of the authorized stay. If a person's authorized stay ends before the regular expiration date of the license, the license is cancelled when the authorized stay ends.
Illinois: Temporary visitor's driver's licenses may be issued to any foreign national authorized to be in the country for at least one year and having at least six months of the authorized stay remaining. 625 ILCS 5/6-105.1, 92 Ill. Adm. Code 1030.11(d).
Iowa: Temporary visitors must be authorized to be in the country for at least 30 days to be eligible for a driver's license. The term of the DL/ID is limited to the length of authorized stay, not to exceed two years. Iowa Code 321.196.
Summary of factual data and analytical methodologies: N/A
Analysis and supporting documentation used to determine effect on small businesses: This is not expected to have any significant impact on small businesses, as the list of acceptable documents for proof of name and date of birth, identity, residency, and Social Security number is being changed to align with the upcoming legal presence requirements. In addition, temporary visitors may operate for up to one year on an International Driving Permit, so the minimum length of stay requirement will not impact drivers licensed in their home countries. Any temporary visitor whose length of stay goes beyond one year would be eligible for a driver's license.
Effect on Small Business
This rule making will have no effect on small businesses. The Department's Regulatory Review Coordinator may be contacted by e-mail at
ralph.sanders@dot.state.wi.us, or by calling (414) 438-4585.
Fiscal Effect and Costs incurred by Private Sector
The Department estimates that there will be no fiscal impact on the liabilities or revenues of any county, city, village, town, school district, vocational, technical and adult education district, sewerage district, or federally-recognized tribes or bands. The Department estimates that there will be no fiscal impact on state revenues or liabilities or any costs incurred by the private sector.
Agency Contact Person and Submission of Comments
The public record on this proposed rule making will be held open until close of business the day of the hearing to permit the submission of comments in lieu of public hearing testimony or comments supplementing testimony offered at the hearing. Any such comments should be submitted to Gary Guenther, Department of Transportation, Bureau of Field Services, Room 266, P. O. Box 8917, Madison, WI 53708-8917. You may also contact Mr. Guenther by phone at (608) 266-2743 or via e-mail: gary.guenther@dot. state.wi.us.
Notice of Hearing
Transportation
