Rules Clearinghouse No. January 25, 2024
THE DEPARTMENT OF AGRICULTURE, TRADE
AND CONSUMER PROTECTION’S
PROPOSED ORDER TO ADOPT PERMANENT RULES
PROPOSED ORDER
The Wisconsin department of agriculture, trade and consumer protection proposes the following rule to repeal ATCP 93.050 (59), 93.100 (1) (b) 1., 3., 9., and 9. Note, 93.440 (3) (a) 2. b., 93.465 (2) (b), 93.610 (1) and (2), 93.630 (3), and 93.700 (2) (b) 1.; to amend ATCP 93.020 (6) (b), 93.050 (1), (66), and (114) (k), 93.110 (1) (a), 93.140 (1), Table 93.1605, 93.200, Table 93.400, 93.400 (1) (c), 93.440 (4) (a) Intro., 93.615 (3) (b) 3., 93.610 (4), Table 93.615-A, Table 93.615-B, 93.630 (4), and Table 93.630; relating to storage of flammable, combustible, and hazardous liquids and affecting small businesses.
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Analysis Prepared by the Department
of Agriculture, Trade and Consumer Protection
This rule implements Wis. Stat. ch. 168, subch. II, which is titled Storage of Dangerous Substances. That subchapter consists of Wis. Stat. §§ 168.21 to 168.28. DATCP is responsible for administering and enforcing that subchapter per Wis. Stat. § 168.21(2). Statutes Interpreted
Statutes Interpreted: Wisconsin Stat. ch. 168, subch. II. Statutory Authority
Explanation of Statutory Authority
The rule is authorized by Wis. Stat. §§ 168.23 and 168.28(2). Subsection (1) of Wis. Stat. § 168.23 directs the department to “promulgate by rule construction, maintenance and abandonment standards applicable to tanks for the storage, handling or use of liquids that are flammable or combustible or federally regulated hazardous substances, and to the property and facilities where the tanks are located.” Subsection (3) of the statute provides that rules promulgated under subsection (1) “may require the certification or registration of persons who install, remove, clean, line, perform tightness testing on and inspect tanks and persons who perform site assessments.” Subsection (4) of the statute directs the department to promulgate rules specifying fees for plan review and inspection of tanks and for certifications and registrations required under subsection (3). Wisconsin Stat. § 168.28(2) directs the department to “develop uniform procedures for reporting the location of aboveground storage tanks and underground storage tanks.” Moreover, Wis. Stat. § 93.07(1) imposes a duty on the department “[t]o make and enforce such regulations, not inconsistent with law, as it may deem necessary for the exercise and discharge of all the powers and duties of the department.” In addition, Wis. Stat. § 93.07(2) imposes a duty on the department “[t]o prescribe forms for all applications, notices and reports required to be made to the department or which are necessary in its work.” Related Statutes and Rules
Wisconsin Admin. Code ch. ATCP 94 addresses petroleum and other liquid fuel products. Wisconsin Stat. § 168.21 defines various terms used in Wis. Admin. Code ch. ATCP 93. Wisconsin Stat. § 168.25 grants the Department the authority to enforce the statutes for storage of petroleum products and dangerous substances. Wisconsin Stat. §168.28 (2) requires DATCP to undertake a program to inventory and determine the location of aboveground storage tanks and underground storage tanks. Wisconsin Admin. Code ch. SPS 314 (Wisconsin Fire Prevention Code) and requirements in Wis. Admin. Code chs. SPS 361 to 366 have an impact on aspects of this rule, and the proposed rule refers to those SPS rules when appropriate. The rule also refers to Wis. Admin. Code chs. NR 679, 811, and 812. Finally, Wis. Stat. § 227.29 (1) requires the Department to review the administrative rules promulgated or administered for rules that conflict with another rule, state statute, federal statute, or regulation. Plain Language Analysis
Background
DATCP repealed and recreated ch. ATCP 93 in November 2019. This marked the last time DATCP revised the rule. Periodically, the Department updates rules to consider and usually to adopt the most recent versions of standards it incorporates into its rules by reference. This rule revision achieves that.
Rule Content
The Department of Agriculture, Trade and Consumer Protection (department) considered modifications to ch. ATCP 93 in three areas: — Incorporation of Standards by Reference
— Forms Management
Incorporation of Standards by Reference
Chapter ATCP 93 of Wisconsin Administrative Code incorporates industry standards by reference, and those standards frequently update due to recommended changes by experts in the industry. The department researched to discover which standards had updated since the November 2019 revision. The standards in question are generally accepted by industry and are readily available in published form through the publishers or online. After reviewing the standards, DATCP chose to update all standards that had updated since the November 2019 revision. The decision alters the tables in Wis. Admin. Code § ATCP 93.200. Wis. Stat. § 227.29 (1) requires the Department to review the administrative rules promulgated or administered for rules that conflict with another rule, state statute, federal statute, or regulation. In the department’s March 31, 2021 letter to the Joint Committee on the Review of Administrative Rules (JCRAR), DATCP identified two areas. The first addressed issues with tank size, and the second specified authority granted by DATCP to those outside the agency who conduct inspections. Until October 1, 2019, DATCP regulated aboveground storage tanks with a tank size of 110 gallons and higher through the regulatory framework of ch. ATCP 93. In compliance with DATCP’s obligations under 2017 Wisconsin Act 108, DATCP identified that it cannot regulate aboveground storage tanks with a capacity of less than 5,000 gallons per Wis. Stat. § 168.22 (3). As such, DATCP ceased regulating such tanks on that date. The rule revision resolves the conflict. Due to the complexity of the rule, provisions cross-reference and affect other portions of the rule. Therefore, the letter to JCRAR may not have identified all affected provisions. In that context, DATCP further reviewed the rule to discover if the change from 110 to 5,000 gallons affected other parts of ch. ATCP 93. It found it did and therefore required other changes throughout the chapter that had not been identified in the March 31, 2021 letter. For years, DATCP has not solely inspected all tank systems in Wisconsin. Instead, the agency contracted with private entities as local program operators (LPOs) and permitted municipal entities to create their own inspection programs. Wisconsin Admin. Code § ATCP 93.110 (1) (a) authorized private entities to act with the authority of the department. However, since Wis. Stat. § 93.06(11)(a) does not authorize private entities to enforce DATCP rules, DATCP amended ATCP 93.110(1)(a). Since that work had been performed as part of an LPO contract, the definition of an LPO in Wis. Admin. Code § ATCP 93.050 (66) also changed to reflect that private entities cannot fulfill the function and only certain public entities can as well. Forms Management
DATCP has adopted an internal procedure, Procedure Number 378, to fulfill its statutory forms management requirements under Wis. Stats. §§ 15.04 and 16.97. Since form numbers can frequently change and those changes require rulemaking if stated in the rule, DATCP considered removing form numbers such as TR-WM-130 and TR-WM-133 from the rule. The Manual states: 1.12 Notes. (3) REFERENCES TO FORMS. If a rule requires a new or revised form, include a reference to the form in a note to the rule. The note should indicate the address that a person may write to, or the telephone number that a person may call, in order to obtain the form. If the form is available on the Internet, the note should indicate the website from which the form may be obtained. [See ss. 227.01 (13) (q) and 227.14 (3), Stats., for the treatment of forms in ch. 227, Stats.] For this reason, DATCP considered eliminating references to form identification numbers in the substantive provisions of ch. ATCP 93 and only listing form identification numbers in notes to the rules explaining how to obtain forms. However, for ease of industry compliance and ease in enforcement, DATCP elected not to remove form identification numbers from the substantive rules and will continue to reference form identification numbers within the rule. DATCP has kept references in the Notes explaining how to obtain these forms. In this way, readers and users of the rule will find the forms readily. Summary of and Comparison with Existing or Proposed
Federal Statutes and Regulations
The federal government relies on many of the industry standards that DATCP proposes to adopt in the tables listed in Wis. Admin. Code § ATCP 93.200. Federal regulations for both aboveground and underground storage tank systems address groundwater and surface water protection. The planned rule changes are not expected to conflict with these federal regulations.
Summary of Comments Received during the Public Hearing on Statement of Scope
The department received no comments to the scope either at the public hearing or in the comment period following.
Comparison with Rules in Adjacent States
Illinois
Illinois has a similar program reflected in administrative rules found in the Illinois Fire Protection code section (Title 41), particularly 41 Ill. Adm. Code 172 to 180.
Iowa
Iowa has a similar program as reflected in administrative rules found in code sections pertaining to the State Fire Marshal, particularly 661 Iowa Administrative Code sections 221 to 228. Other rules governing underground storage tanks appear in 567 Iowa Administrative Code sections 134 to 136, which pertain to the Iowa Department of Natural Resources.
