To further simplify rule language, and to streamline future revisions to the Methods Manual, staff are proposing to change applicable language in ss.
NR 106.09 and
NR 149.22, Wis. Adm. Code, to refer to the language shown above from NR 219.04, which incorporates the Methods Manual by reference. Doing this will allow future editions of the Methods Manual to be incorporated by revising only ch.
NR 219, Wis. Adm. Code.
Staff do not believe that any significant unresolved issues exist with this package since actual rule language changes are not complicated and a significant amount of information sharing was accomplished by soliciting input from external constituents on preliminary drafts while making improvements to the Methods Manual. Approximately 150 hours of staff time will be needed to process this rule.
Comparison to federal regulations
The United States Environmental Protection Agency (USEPA) promulgated regulations concerning the use of WET methods to protect aquatic life in National Pollutant Discharge Elimination System (NPDES) permits in 1995 (60 FR 53529, October 16, 1995). The USEPA-approved WET methods are specified in the “Guidelines Establishing Test Procedures for the Analysis of Pollutants",
40 CFR 136.3, Tables IA and II, of the Clean Water Act. These WET methods employ standardized, freshwater, marine, and estuarine vertebrates, invertebrates, and plants to directly measure acute and chronic effects of effluents and receiving waters monitored under NPDES permits. On November 19, 2002, USEPA revised and made available updated method manual editions.
As regulations, adherence to the specific test procedures outlined in these USEPA documents is required when monitoring WET under the NPDES program. The extent that such procedures are “requirements" depends on the text of the documents themselves (i.e., words of obligation, such as “must" or “shall" indicate a required procedure; “may" or “should" provide flexibility so that states and laboratories may optimize test methods for specific situations). Wisconsin's Methods Manual is intended to comply with the requirements of
40 CFR part 136, while providing testing and laboratory procedures specific to those performing WET testing for the WPDES program. EPA's methods, out of necessity, include many provisions which allow different protocols to be followed, depending on the intended use of the test results and the area of the country in which the test is to be applied. Wisconsin's Methods Manual eliminates many of these optional parameters in order to insure the consistency of methods used by Wisconsin labs and permittees and, where possible, to improve upon available WET methods and make them more appropriate for use by Wisconsin permittees.
All Entities Affected by the Rule
The Methods Manual contains WET test methods that must be followed by permittees and their contract laboratories when required in a WPDES permit. WET tests are required in a WPDES permit when an effluent is discharged to a surface water and site-specific factors suggest that there is a potential for the discharge of toxic substances in amounts that may be harmful to fish and aquatic life. Therefore, municipal and industrial permittees with surface water discharges that have WET test requirements in their permits are affected by these rules. Laboratories that perform WET tests for WPDES compliance are also affected.
Natural Resources
Subject
Objective of the rule. SB 324 was recently passed by the Wisconsin Legislature at the recommendation of the DNR, the Wisconsin Fabricare Institute, the Governor's Council for the Dry Cleaner Environmental Response Fund (DERF) Program, and the Department of Revenue. This law contains changes to s.
292.65, Wis. Stats., relating to the Dry Cleaner Environmental Response Fund program, administered by the DNR. Based on these statutory changes, ch.
NR 169 will need to be modified to incorporate the new provisions in the law. The most significant change relates to the deadline date for submittal of reimbursement applications for eligible applicants who are conducting environmental investigations and cleanups per ch.
NR 169 and the ch.
NR 700 cleanup rule series. A rule revision advisory group will be established comprised of DNR representatives, drycleaning industry representatives, representatives of the Governor's Council for the DERF program, and consulting firm representatives. Changes to the rule will affect these customers.
Description of Policy Issues/Analysis of Policy Alternatives
The following summarizes the statutory changes contained in SB 324 that will need to be addressed in ch.
NR 169, Wis. Admin. Rule. In addition, enhancements to the current rule language will be discussed and recommended as necessary by the rule-revision advisory group.
•
Eligibility clarification:
Statutory changes include clarification that past operators, as well as past drycleaner owners are eligible for the program; that for closed facilities that were once licensed, property owners that owned the property when the facility was in operation are eligible for the program, but not new property owners after a facility has closed; and that an agent may submit the reimbursement application for an award without having the eligible applicant sign off on the reimbursement application.
•
Reimbursements from other sources
Requires owners or operators to notify the department of any application, including any insurance claim made to obtain funds to cover eligible costs or to obtain a tax credit based on eligible costs, as well as any funds or tax credits arising from the application. Such payments shall be either repaid to the department if the reimbursement has already occurred, or will be subtracted out of the reimbursement application request.
•
Deadline Date
Stipulates that an owner or operator may not submit a reimbursement application if they have not submitted a potential claim notification form by August 30, 2008.
•
Payment of fees
Stipulates that all fees, interest and penalties must be paid or an application shall be denied, but does not specify who must make those payments.
•
Environmental Fund Clarification
Stipulates that the DERF fund can reimburse the Environmental Fund if there would otherwise be an eligible applicant for the site, and that all costs are reimbursed minus the deductible.
•
Third Party Site Discovery Costs
Allows some limited third party site scoping costs to be included in the reimbursement application from an eligible applicant, if the costs were incurred prior to the Department or the drycleaner knowing there was a release from their facility. Costs are limited to only the discovery of contamination and do not include other investigative or remedial action costs incurred by the third party.
Statutory authority
Section
292.65, Wis. Stats. authorizes the DNR to create rules to implement the Dry Cleaner Environmental Response Fund Program. Chapter
NR 169 became effective in January 2000, and was revised in May, 2003 to incorporate previous statutory changes and other program enhancements.
Staff time required
Staff estimate approximately 4 months to revise the rule and request public hearing from the NRB. The final rule should be completed within 9 months of the initiation of rule changes. The changes being considered are not substantial changes to how the program is being implemented, but incorporation of necessary refinements to the program. Working with the affected parties in drafting the rules should expedite the rule-making process.
Comparison to federal regulations
There are no federal regulations regarding the remediation of drycleaner facilities. This rule addresses implementation issues associated with the reimbursement program, and does not affect existing cleanup rules already in place in the ch.
NR 700 rule series.
Transportation
Subject
Objective of the rule. This proposed rule making will amend ch.
Trans 112 by modifying the type of driver record and criminal offenses that makes a person ineligible to obtain a school bus endorsement or to transport pupils. The rule extends the disqualification period to more than 5 years for specific crimes and creates a lifetime disqualification for some crimes. The proposed rule defines procedures for requesting and processing out-of-state criminal background checks for drivers that have lived in Wisconsin for less than 2 years and establishes a fee for the background check. The proposed rule will also define standards for employment of school bus drivers and others that transport pupils. Additional proposed amendments will clarify for the driver, the board physicians, employers and the Department of Justice (DOJ) issues that have proved to be problematic when sanctions are reviewed in a judicial review proceeding.
Policy alternatives to the proposed rule
Currently, ch.
Trans 112 defines certain driver record and criminal offenses that make a person ineligible to obtain a school bus endorsement or transport pupils, but there are many serious crimes, which are not included. DMV is the source for the driver record information and DOJ is the source for the criminal background information. If the driver has resided in Wisconsin for less than 2 years, there is no background check conducted with the former state of residency. There are no checks done against other Wisconsin state agency Registry files that contain reported or criminal activity.
The proposed rule changes are required under
2003 Wis. Act 280. The rule will define a procedure for conducting an out-of-state criminal background check and establish fees only to cover the cost of the process. The changes to the ineligibility periods will be defined by the severity of the crime and the likelihood that the person could rehabilitate and become safe to drive pupils. For example, an individual convicted of serious sexual crimes against children may never be eligible to obtain a school bus endorsement or to transport pupils. The proposed amendments are intended to protect pupils during transportation to, from and during school activities.
The proposed amendments to ss.
Trans 112.04,
112.18 and
112.20 will clarify for the driver, the board physicians, employers and DOJ issues that have proved to be problematic when sanctions are reviewed in a judicial review proceeding.
Comparison to federal regulations
None.
Statutory authority
Staff time required
Approximately 200 hours.
Workforce Development
Subject
Ch.
DWD 12, grievance procedure for resolving complaints of employment displacement under the Wisconsin Works program.
Policy analysis
Section 49.141 (5) (am), Stats., as renumbered by
2003 Wisconsin Act 173, and s. DWD 12.05 (9) prohibit the filling of a vacancy created by an employer terminating a regular employee for the purpose of filling the position with a W-2 participant or a position of a person on layoff, strike, or other labor dispute from the same or a substantially equivalent job within the same organizational unit by a W-2 participant.
The department has an existing grievance procedure that sets forth the steps for resolving complaints of alleged violations of this prohibition. Section
49.141 (5) (bm), Stats., as created by
2003 Wisconsin Act 173, requires the department to promulgate a rule specifying the grievance procedure. The procedure provides the steps a complainant must take to file a complaint, the program agency responsibilities for initial review and investigation of a complaint, the procedures and time limits for hearing complaints and issuing decisions, and provisions for appealing program agency action on a complaint.
Comparison to federal regulations
Federal law prohibits an adult in a family receiving assistance under a state program funded by a federal Temporary Assistance for Needy Families (TANF) block grant from being employed or assigned when any other individual is on layoff from the same or any substantially equivalent job or if the employer has terminated the employment of any regular employee to fill the vacancy with a participant in a TANF-funded program. States are required to establish and maintain a grievance procedure for resolving complaints of alleged violations of this prohibition.
Statutory authority
Staff time required
100 hours.
Workforce Development
Subject
Ch.
DWD 290, prevailing wage rates on state or local public works projects.
Policy analysis
Sections
66.0903 (1) (g) and
103.49 (1) (d), Stats., provide a two-tiered definition of “prevailing wage rate" under which the rate in any area is the hourly basic rate of pay, plus the hourly contribution for health insurance benefits, vacation benefits, pension benefits and any other bona fide economic benefit, for a majority of hours worked in the trade or occupation on projects in the area. If there is no rate at which a majority of the hours worked is paid, a weighted average methodology applies based on the pay of the highest-paid 51% of hours worked in that trade or occupation on projects in that area.
The department has had an informal policy of looking at the hourly basic rate of pay and fringe equivalent as separate figures and requiring an exact match of both the hourly rate of pay and the fringe equivalent in determining whether there is a majority at a particular rate. The department has now determined that it is more appropriate to determine whether there is a majority of hours reported that receive a certain total economic benefit that is the combined value of the hourly rate of pay and fringe equivalent. If there is a majority of reported hours paid at a certain total economic benefit, the department will issue a prevailing wage determination that is the most commonly reported hourly rate of pay and fringe equivalent that receive that total economic benefit.
Comparison to federal regulations
There are no federal prevailing wage rate regulations that apply to state or local public works projects. The federal prevailing wage regulations that apply to federally-funded public works projects determine the prevailing hourly rate of pay and the prevailing fringe equivalent as completely separate inquiries. Under the federal system, the resulting combination of the hourly rate of pay and fringe equivalent issued by the U.S. Department of Labor may result in a combination of hourly pay and fringe equivalent that is not the most commonly paid total economic benefit on private projects.
Statutory authority
Staff time required
100 hours.
