• Providing essential waste handling services including drum packing, testing for unknown chemicals, containing loose chemicals, and approving cylinders for disposal.
• Collecting, packing, and transporting poison-solids, poison-liquids and poison-flammables to waste management sites licensed by federal and state governments.
• Providing waste collection and disposal services for mercury-bearing and dioxin-bearing chemicals, acids, bases, and low-pressure gas cylinders and canisters, unless there are no federally-approved or state approved disposal options available.
• Properly handling chemicals for which no federally approved or state approved disposal options are available.
• Collecting and reporting information related to banned and target chemicals.
• Administering registration, recordkeeping and reporting requirements related to VSQG's who are not farmers.
• Meeting other requirements specified by the Department in its announcement soliciting county grant applications. (Among other things, the Department may specify grant terms and conditions that are reasonably designed to advance the Department's statewide “clean sweep" goals, and facilitate statewide administration of the “clean sweep" program.)
This rule does not require Department approval of a hazardous waste contractor. Nor does it require a county to use the state's hazardous waste contractor. However, the Department may require a county to submit proof that the hazardous waste contractor selected by the county meets applicable requirements under this rule. The Department may disapprove a hazardous waste contractor selected by a county if the Department finds that the contractor does not meet applicable requirements under this rule. The state of Wisconsin's hazardous waste contractor is an approved contractor for purposes of this rule.
Grant Applications and Awards
This rule clarifies the standards and procedures which the Department uses to invite county grant applications, establish grant conditions, evaluate grant applications, and award “clean sweep" grants to counties. Like the current rule, this rule requires the Department to enter into a grant contract with each county receiving a “clean sweep" grant, and spells out the required contents of that contract.
Reports and Payments
Like the current rule, this rule requires a county to file a final report with the Department before the Department pays any grant funds to the county. The county must file the report within 90 days after the “clean sweep" project is completed, and must include relevant information about the project. This rule authorizes the Department to make partial payments for “permanent collection events" while those events are ongoing. A county must file an interim report prior to each partial payment.
Fiscal Estimate
The proposed rule makes permanent several hazardous waste disposal services that were not legal prior to 1996. These service offerings will not result in significant cost increases. No increase in segregated fund appropriations are required.
The proposed rule will make permanent the required county cost-share match to receive ch. ATCP 34 grants. The cost-share will be set at $3,000 per annual grant application. Counties have not found the required cost-share to be a burden and have continually reapplied to the Department for ch. ATCP 34 grants over the years.
The proposed rule will extend hazardous waste collection services to a wide range of businesses and municipalities, including school districts. It is expected that an extra 50 to 100 businesses, schools, and municipalities will use Ag Clean Sweep disposal services every year. However, as the current segregated fund appropriation has been found to be adequate for business services, there is no need to increase the appropriation at this time.
Initial Regulatory Flexibility Analysis
Businesses Affected:
The proposed rule will make it easier for a wide variety of businesses and public entities, including schools, to use the Agricultural Clean Sweep Program. The new rule extends services to any business or municipal entity that uses or holds non-household pesticides for disposal . . . provided prospective customers self-certify as a Very Small Quantity Generator (VSQG) pursuant to the Department of Natural Resources (DNR) administrative rule, ch. NR 610. This means that hardware stores, department stores, marinas, parks, cemeteries, and construction companies along with schools and local units of government can legally use Agricultural Clean Sweep. This change is expected to at least quadruple the number of businesses eligible for clean sweep disposal services.
Eligible businesses can receive convenient, lower-cost hazardous waste disposal services through Ag Clean Sweep participation. When available, on-site pickup services through private waste haulers are often very expensive. Businesses with unwanted agricultural pesticides can receive up to a 50% disposal subsidy from the Department. All other chemicals can be accepted, but businesses must pay full disposal costs.
Also affected by the proposed rule are national and regional hazardous waste contractors who operate federally- and state-approved disposal facilities. These companies could compete for contracts from counties who have been awarded Ag Clean Sweep Program grants by the Department. It is estimated that up to ten contractors could seek contracts from counties.
Operating Procedures Improved for Businesses:
The proposed rule streamlines and simplifies procedures for business participation in a host of ways. Hazardous waste contractors and county clean sweep coordinators can provide upfront pre-registration packets which contain all necessary information for an accurate estimate of disposal costs. At the same time, this early communication with hazardous waste haulers allows businesses to work with professionals who can provide direct advice on hazardous waste rules and regulations. Poor knowledge of hazardous waste risks and federal/state regulations have been two obstacles preventing businesses from making good decisions on hazardous waste management.
Federal and state hazardous waste reporting requirements have been incorporated into Ag Clean Sweep procedures. Because long term liability under the Resource Conservation and Recovery Act (RCRA) and Comprehensive Environmental Response Compensation and Liability Act (CERLA) cannot be waived by public program participation, businesses, with the exceptions of farms, remain responsible for their wastes and appropriate records must be prepared and maintained.
Hazardous Waste Contractors:
The proposed rule allows counties who have been awarded ch. ATCP 34 grants to select their own hazardous waste contractor providing this contractor can meet Ag Clean Sweep performance standards, is selected by the annually established date, and is otherwise capable of meeting the Department's statewide hazardous waste goals. The Department of Administration's (DOA's) hazardous waste contractor selected under cooperative purchasing is available to counties not wishing to seek competitive bids.
Hazardous waste contractor performance will likely improve at permanent collection facilities as a result of the proposed rule. Counties with permanent facilities often have extensive experience with hazardous waste contracting. However, the impact of this rule on temporary or one-day collection events is more uncertain. In general, temporary event counties have limited experience with hazardous waste contracting and they may find it more difficult to meet program service and administrative requirements.
Notice of Hearings
Agriculture, Trade and Consumer Protection
The State of Wisconsin Department of Agriculture, Trade and Consumer Protection announces that it will hold public hearings on its emergency rule (ss. ATCP 60.19(3) and (4), Wis. Adm Code) relating to drug residues in raw milk. The hearings will be held at the times and places shown below.
Written Comments
Pursuant to s. 227.24 (4), Stats., public comment is being sought on the Department's emergency rule. The public is invited to attend the hearings and make comments on the emergency rule. Following the public hearings, the hearing record will remain open until June 30, 1999, for additional written comments.
Copies of Rule and Contact Information
A copy of this rule may be obtained free of charge, from the Wisconsin Department of Agriculture, Trade and Consumer Protection, Division of Food Safety, 2811 Agriculture Drive, P.O. Box 8911, Madison WI 53708, or by calling (608)224-4700. Copies will also be available at the public hearings.
An interpreter for the hearing impaired will be available on request for these hearings. Please make reservations for a hearing interpreter by July 15, 1999 either by writing to Debbie Mazanec, 2800 Agriculture Drive, P.O. Box 8911, Madison, WI 53708, (608- 224-4712), or by contacting the message relay system (TTY) at 608-266-4399 to forward your call to the Department at 608-224-5058. Handicap access is available at the hearings.
Hearing Information
Three (3) hearings are scheduled. The hearings will be held simultaneously by videoconferencing at the following locations on Friday, June 18, 1999, from 10:30 a.m. - 12:00 p.m. These hearings are being held in conjunction with hearings on a proposed permanent rule which is identical to the emergency rule.
Locations:
Wis. Dept. of Agriculture, Trade &
Consumer Protection
Room 472
2811 Agriculture Drive
Madison, WI 53704
Handicapped accessible
State of Wis. Office Building
Room 618
200 North Jefferson St.
Green Bay, WI 54301
Handicapped accessible
State of Wis. Office Building
Room 139
718 West Clairemont Ave.
EauClaire, WI 54701
Handicapped accessible
Analysis Prepared by the Dept. of Agriculture, Trade and Consumer Protection
Statutory authority: ss. 93.07 (1), 97.09 (4), 97.20 (4), 97.22 (8) and 97.23
Statutes interpreted: ss. 97.20, 97.22 and 97.23
This emergency rule modifies current rules under ch. ATCP 60, Wis. Adm. Code, related to follow-up testing of producer milk samples when a bulk tanker load of milk tests positive for a drug residue. This emergency rule also clarifies how a dairy plant must dispose of milk that tests positive for a drug residue.
Follow-up Testing of Producer Milk Samples
Under current rules, a milk hauler must collect a sample of milk from every dairy farm milk shipment before loading that shipment onto a bulk milk tanker. The dairy plant operator receiving the bulk milk tanker load must perform a drug residue screening test on that tanker load. If the tanker load tests positive for any drug residue, the dairy plant operator must perform a drug residue test on each of the milk samples drawn from the producer milk shipments comprising the tanker load. If a producer sample tests positive for drug residue, the dairy plant operator may hold that producer financially responsible for contaminating the bulk load. Current rules do not require confirmatory tests on producer samples that test positive for drug residues.
This emergency rule requires a dairy plant operator to perform a confirmatory test in duplicate on each producer milk sample that tests positive for any drug residue. Under this emergency rule, the dairy plant operator must perform a confirmatory test using the same test method and producer sample. The operator must perform the confirmatory test in duplicate, with single positive and negative controls. If one or both confirmatory test results are positive for a drug residue, the milk producer's sample is considered positive for that drug residue.
Disposing of Contaminated Milk
This emergency rule also clarifies how a dairy plant must dispose of milk that tests positive for a drug residue. Current rules require a dairy plant operator to reject a bulk tanker load of milk that tests positive for drug residue. A rejected bulk load may not be used for human food. This emergency rule clarifies that a dairy plant operator must either dispose of a rejected bulk load or denature it before transferring it to any other person.
Finding of Emergency
The state of Wisconsin Department of Agriculture, Trade and Consumer Protection (DATCP) finds that an emergency exists and that the following emergency rule is necessary to protect public health, safety and welfare. The facts constituting the emergency are as follows:
(1) Milk from Wisconsin dairy farms may not contain drug residues. Current rules under ch. ATCP 60, Wis. Adm. Code, require every dairy plant operator to perform a drug residue screening test on every bulk load of raw milk received by that operator. If the bulk load tests positive for any drug residue, the operator must test a milk sample from each producer milk shipment included in that bulk load. Current rules do not require a dairy plant operator to perform a confirmatory test if a producer sample tests positive on an initial test.
(2) If a producer sample tests positive for drug residue, the dairy plant operator may hold that producer financially responsible for contaminating the bulk load. In some cases, the cost of a contaminated tanker load of milk may be $5,000 or more. The Department may also take enforcement action against the milk producer. Enforcement may result in financial penalties or suspension of the milk producer's license.
(3) In several enforcement actions, producers have argued that dairy plant drug residue tests were inaccurate. Producers claimed that there was no confirmatory testing, and no opportunity to confirm the accuracy of the dairy plant operator's test findings. Inaccurate findings may unfairly penalize affected producers, and result in severe financial losses to those producers. The lack of a confirmatory test aggravates conflicts between dairy plant operators and milk producers.
(4) Confirmatory testing of test-positive producer samples would provide greater assurance of fairness for milk producers, and would help avoid conflicts between dairy plant operators and producers. Dairy plant operators can perform confirmatory tests at reasonable cost. An emergency rule requiring confirmatory testing of producer samples is necessary to protect milk producers, and to promote the efficient operation and economic well-being of Wisconsin's dairy industry.
(5) Confirmatory testing of test-positive producer samples will enhance, and not reduce, the safety of Wisconsin milk supplies. Dairy plant operators will still be required to test bulk tanker loads of milk, and dispose of tanker loads that test positive for drug residues.
(6) This emergency rule will strengthen public health protection by requiring dairy plant operators to dispose of contaminated loads, or denature contaminated loads before transferring them to the custody of another person. Denaturing ensures that persons receiving custody of contaminated loads will not redirect them to human food use.
(7) Pending the adoption of rules according to normal administrative rulemaking procedures, it is necessary to adopt this emergency rule to do both of the following:
(a) Protect the public milk supply against drug residue contamination by assuring proper disposal of contaminated milk.
(b) Provide additional assurance that milk producers will not be subjected to serious penalties or financial losses based on inaccurate drug residue tests.
Fiscal Estimate
The proposed rule changes incorporates orders given to the Division of Food Safety by the Department secretary and deputy in three contested case decisions. These changes include the following:
1. Requires the dairy plant operator to conduct confirmation testing using positive and negative controls on a producer milk sample that screens positive for the presence of a drug residue.
2. Places the responsibility on the dairy plant operator to either dispose of or denature a bulk load of raw milk that tests positive for the presence of a drug residue.
The changes do not require any additional regulatory activity or recordkeeping by the Department. Therefore, there is no fiscal effect attributed to the adoption of these rule changes, except for one-time costs associated with the rule-making of approximately $500, consisting of printing, mailing and costs of holding hearings.
Initial Regulatory Flexibility Analysis
The modifications to ch. ATCP 60, Wis. Adm. Code, Dairy Farms, will not have a fiscal impact on small businesses as defined in s. 227.114 (1) (a), Stats. There are approximately 110 dairy plants currently licensed and inspected by the Department that meet the definition of a small business.
The testing of every bulk load of raw milk for a drug residue received by a dairy plant operator is required under the dairy farm rule. A dairy plant operator is also required to test each of the producer milk samples collected for a bulk load that tests positive for a drug residue in order to identify the violative producer or producers.
A dairy plant operator is required to reject a bulk load of raw milk that tests positive for a drug residue. The rejected bulk load cannot be shipped to another dairy plant or used for human food.
