Rule-Making Notices (Hearing Notices)

[CR 03-120]

(Reprinted from 12/31/03 Register)

The State of Wisconsin Department of Agriculture, Trade and Consumer Protection announces that it will hold a public hearing on 2 proposed rules that do the following:

•Amend ch. ATCP 35, Wis. Adm. Code, relating to the agricultural chemical cleanup program.

•Amend ch. ATCP 40, Wis. Adm. Code, relating to fertilizer tonnage fee surcharges used to fund the agricultural chemical cleanup program.

The department will hold one hearing, covering both rules, at the time and place shown below. The department invites the public to attend the hearing and comment on the proposed rules. Following the public hearing, the hearing record will remain open until January 31, 2004, for additional written comments.

You may obtain free copies of the rules by contacting the Wisconsin Department of Agriculture, Trade and Consumer Protection, Division of Agricultural Resource Management, 2811 Agriculture Drive, P.O. Box 8911, Madison WI 53708, or by calling [phone]. Copies will also be available at the hearing.

Hearing impaired persons may request an interpreter for this hearing. Please make reservations for a hearing interpreter by January 19, 2004, by writing to Judy Testolin, Division of Agricultural Resource Management, P.O. Box 8911, Madison, WI 53708-8911, telephone [phone]. Alternatively, you may contact the Department TDD at [phone]. Handicap access is available at the hearing.

The hearing is scheduled :

Thursday, January 22, 2004, 2:00 p.m. until 5:00 p.m.

Alliant Energy Center

1919 Alliant Energy Center Way

Monona – Wingra Room (Second Floor)

Madison, WI 53713

Analysis Prepared by the Department of Agriculture, Trade and Consumer Protection

Agricultural Chemical Cleanup Program (ATCP 35).

Statutory Authority: ss. 93.07 (1) and 94.73 (11), Stats.

Statute Interpreted: s. 94.73, Stats.

The Department of Agriculture, Trade and Consumer Protection (DATCP) currently administers an agricultural chemical cleanup program under s. 94.73, Stats. This program is designed to clean up spills of agricultural chemicals and minimize environmental contamination. Under this program, DATCP may reimburse a portion of the eligible cleanup cost.

DATCP has adopted rules, under ch. ATCP 35, Wis. Adm. Code, to govern this program. This rule modifies current rules. Among other things, this rule implements statutory changes enacted in 2003 Wis. Act 33 (biennial budget act).

Landspreading Soil from Cleanup Sites

In appropriate cases under current rules, a cleanup operation may include landspreading of soils contaminated with spilled fertilizers or pesticides. Landspreading may reduce the concentration of the fertilizer or pesticide, and may provide an economical and potentially useful disposal option.

This rule clarifies that a person who landspreads soil contaminated with a pesticide is, for purposes of pesticide applicator licensing and certification, engaged in the application of that pesticide. The person must be licensed and certified to spread the pesticide-contaminated soil, to the same extent as if the person were applying the pesticide.

Costs to Remove Existing Structures

In some cases, it may be necessary to remove existing structures in order to clean up a spill site. Current rules generally prohibit DATCP from reimbursing costs incurred for the removal of existing structures. But DATCP may reimburse costs to remove certain concrete or asphalt structures (containment structures, parking areas, roadways, curbs and sidewalks) if DATCP pre-approves the removal after finding that the removal is less expensive than other cleanup alternatives.

Under current rules, DATCP may also reimburse costs to remove and reinstall certain movable structures or equipment, or to replace certain fixtures (such as fences and utility lines) that were in good operating condition when removed for the cleanup.

This rule changes and clarifies the current rules. Under this rule, DATCP may reimburse all the following:

•Costs to remove any concrete or asphalt (not just the concrete or asphalt structures identified in the current rules) if DATCP pre-approves that removal after finding that it is less expensive than other cleanup alternatives. Under this rule, as under current rules, DATCP may reimburse the depreciated value of the concrete or asphalt, as well as the costs of removal and disposal. However, DATCP may not reimburse the cost of replacing the concrete or asphalt.

•Costs to install engineered barriers, to limit infiltration of existing contamination. The responsible person must agree to maintain the barrier at his or her expense.

•Temporary removal and reinstallation of a surface, structure, fixture or equipment item that is removed intact, and returned intact to its original use and approximate original location.

•The following corrective measures related to fixtures (such as fences and utility lines) that are in good condition and operating adequately when the corrective measure occurs:

* Temporary or permanent relocation.

* Removal and replacement with a new fixture of the same size and quality, including any upgrade required by law.

* Protection during a spill cleanup, through shoring or other methods.

Repeat Spills

This rule authorizes DATCP, in consultation with the agricultural chemical cleanup council, to reduce the reimbursement rate for cleanups of repeat spills. Under this rule, DATCP may reduce the reimbursement rate for a spill cleanup if DATCP has received or paid a reimbursement claim related to a prior spill at the same site.

The presumptive reimbursement rate (reduced rate) is 50%, unless DATCP finds that a larger or smaller reduction is appropriate. In determining the amount of the reduction, DATCP may consider all of the following in consultation with the agricultural chemical cleanup council:

• The type of agricultural chemical discharged.

•The nature, size and location of discharge.

•The similarity between the discharge and prior discharges.

•The number of prior discharges, and the number of prior discharges for which the department has reimbursed corrective action costs.

•The responsible person's apparent negligence, if any.

•Whether the discharge was caused by a law violation.

•Other factors that the department or the agricultural chemical cleanup council consider relevant.

Alternative Sources of Drinking Water

In some cases, spills of agricultural chemicals may impair drinking water supplies. Current rules prohibit DATCP from reimbursing well replacement costs, except that DATCP may reimburse up to $20,000 in well replacement costs if DATCP or the Department of Natural Resources (DNR) orders the well replacement.

This rule expands DATCP's authority to reimburse well replacement costs, consistent with legislative changes enacted in 2001 Wisconsin Act 16. Under this rule, DATCP may reimburse up to $50,000 in costs incurred for any of the following actions ordered by DATCP or DNR:

•Replacement or restoration of private wells.

•Connection to alternative water sources, whether public or private.

Contractor to Disclose Identity of Landspreading Subcontractor

Current rules require contractors to disclose certain information in bids for cleanup services. This rule requires a contractor to disclose, in every bid that includes landspreading services, the name of the subcontractor (if any) who will provide those services.

Noncompetitive Bids

Under current rules, if DATCP finds that a bid for cleanup services is unreasonable, or that the cleanup service is unnecessary, DATCP may disapprove the bid, require additional bids or reimburse a lesser amount. This rule authorizes DATCP to take the same actions if DATCP finds that bids appear to be noncompetitive.

Payment Schedule

Under current rules, DATCP must pay cleanup reimbursement claims in installments if the cleanup fund balance is less than $1 million. DATCP may pay an initial installment of up to $50,000. DATCP may not make any additional payment to a claimant in any fiscal year until DATCP has paid initial installments to all eligible claimants in that year. This may delay full reimbursement to some claimants, even when adequate funds are available to pay all eligible claimants. DATCP must pay interest on any delayed payments. This rule changes the current method of payment. Under this rule, DATCP may pay the full amount of reimbursement claims on a first-come, first-served basis (there is no $50,000 installment limit). This will allow DATCP to pay claims more quickly, and limit interest costs to the agricultural chemical cleanup fund.

Reimbursement Rate

Under current rules, DATCP reimburses 80% of eligible cleanup costs. There is a minimum cleanup cost “deductible" of $3,000 or $7,500 (depending upon the type of business doing the cleanup), and DATCP does not reimburse costs to the extent that they exceed $400,000. The maximum allowed payment per cleanup, including interest on delayed payments, is $317,600 or $314,000 (depending on the applicable “deductible").

This rule reduces the current reimbursement rate, consistent with legislation enacted in 2003 Wisconsin Act 33. Under this rule, DATCP will reimburse 75% of eligible cleanup costs incurred on or after January 1, 2004. There will still be a minimum cleanup cost “deductible" of $3,000 or $7,500 (depending upon the type of business doing the cleanup). DATCP will still not reimburse costs to the extent that they exceed $400,000. The maximum allowed payment per cleanup will be $297,750 or $294,375 (depending on the applicable “deductible").

Repeal of Obsolete Provisions

This rule repeals obsolete retroactivity provisions contained related to reimbursement claims filed with the department prior to November 1, 2000.

Fiscal Estimate

DATCP estimates that this rule will save $180,000 for the agricultural chemical cleanup fund each year. This includes the following projected savings:

•By lowering the cleanup cost reimbursement rate from 80% to 75% (as required by current law), DATCP will save approximately $160,000 each year.

•By paying reimbursement claims on a first-come, first-served basis instead of installments, DATCP will save approximately $20,000 in interest costs each year.

DATCP estimates that it will save an additional $50,000 each year by reducing the reimbursement rate for repeat spills. But DATCP estimates that these savings will be offset, each year, by $50,000 in additional reimbursement payments related to concrete structure removal and private well replacement.

Initial Regulatory Flexibility Analysis

This rule affects businesses that clean up spills of fertilizers and pesticides in Wisconsin. Currently more than 360 businesses are involved in fertilizer or pesticide cleanups. Most of the cleanups occur at farm centers, agricultural dealerships and agricultural cooperatives. Many of these businesses are “small businesses" as defined in s. 227.114 (1) (a), Stats.

This rule will affect the reimbursement of spill cleanup costs. But this rule will not, by itself, have a major impact on small business. This rule merely implements a reimbursement rate reduction that the Legislature has already mandated. The rule changes expedite reimbursement payments, and increase reimbursement eligibility for certain cleanup costs. Small businesses will not need additional professional services to comply with this rule.

This rule will reduce reimbursement rates for repeat spills. However, businesses handling agricultural chemicals can participate in the department's Environmental Partners program to minimize their risk of repeat spills.

Environmental Assessment

DATCP has prepared an environmental assessment on this rule. You may obtain a free copy of the environmental assessment by contacting the Wisconsin Department of Agriculture, Trade and Consumer Protection, Division of Agricultural Resource Management, 2811 Agriculture Drive, P.O. Box 8911, Madison WI 53708, or by calling [phone]. Copies will also be available at the hearing.

Fertilizer Tonnage Fees Used to Fund the Agricultural Chemical Cleanup Program (ATCP 40)

Statutory authority: ss. 93.07 (1), Stats.

Statutes interpreted: ss. 94.64 (4) (a) 1., 5. and 6., Stats.

The department of agriculture, trade and consumer protection (DATCP) currently administers an agricultural chemical cleanup program under s. 94.73, Stats. The program is partly funded by fertilizer tonnage fee surcharges.

Fertilizer manufacturers and distributors currently pay tonnage fees and surcharges, based on their annual gross sales of fertilizer in this state. Under current rules, manufacturers pay a surcharge of 38 cents per ton to fund the agricultural chemical cleanup program. This rule increases the surcharge to 86 cents per ton, as authorized by 2003 Wis. Act 33. The new surcharge will apply to fertilizer distributed after July 1, 2004, with initial payment due in August 2005.

This rule also updates current rules to reflect fee changes made by 1999 Wisconsin Act 9 (DATCP has already changed its fee collections according to reflect the statutory changes). The statutory changes decreased the basic fertilizer inspection fee by 2 cents per ton, and added a fertilizer weights and measures inspection fee of 2 cent per ton.

Fiscal Estimate

This rule will increase fertilizer tonnage fee revenues deposited to the agricultural chemical cleanup fund. The increased fee revenues will help finance the reimbursement of agricultural chemical spill cleanup costs, and reduce a projected deficit in the fund. In recent years, the fund has expended from $3.6 to $3.9 million per year in reimbursement payments, whole generating only $2,614,000 in annual revenues.

The fund had a substantial reserve until recently, but that reserve dropped below $200,000 at the end of FY 2002-03. Fiscal year 2003-04 is expected to end with unreimbursed claims (a deficit) of $784,000. Those claims (and associated interest expenses) must be reimbursed in subsequent years.

Initial Regulatory Flexibility Analysis

This rule affects tonnage fees paid by businesses (approximately 500) that are licensed to manufacture or distribute fertilizer in Wisconsin. This rule may indirectly affect farmers, landscape businesses and other persons who purchase and use fertilizer, to the extent that tonnage fee costs are passed on to those purchasers. Some of the affected businesses are “small businesses" as defined in s. 227.114 (1) (a), Stats.

This rule will not have a major adverse impact on small business. The rule will generate an additional $624,000 in fees on the 1,300,000 tons of fertilizer sold annually in Wisconsin. These fertilizers have an average price of more than $150 per ton. The fee increase represents a price increase of about 0.3% on an agricultural input that typically has annual price fluctuations of several percent. This rule does not add any new record keeping or reporting requirements for affected businesses.

By increasing revenues for the agricultural chemical cleanup fund, this rule will benefit businesses (including fertilizer manufacturers and distributors) who rely on the fund for reimbursement of spill cleanup costs. Cleanups often cost more than $30,000, and sometimes more than $100,000. This rule will assist small businesses by assuring adequate funding to cover up to 75% of cleanup costs (subject to a $3,000 deductible).

It will also help ensure faster payment of cleanup reimbursement claims.

Notice of Hearing

Educational Approval Board

[CR 03-126]

NOTICE IS HEREBY GIVEN that pursuant to ss. 45.54 (2), (3), (10) (c) 4., and 227.11 (2), Stats., and interpreting ss. 45.54 (2), (3), (7) and (10), Stats., the Wisconsin Educational Approval Board will hold a public hearing at the time and place indicated below to consider an order relating to the regulation of for-profit postsecondary schools; out-of-state, non-profit colleges and universities; and in-state, non-profit institutions incorporated after 1991.