Rule-making notices
Notice of Hearings
Agriculture, Trade and Consumer Protection
The State of Wisconsin Department of Agriculture, Trade, and Consumer Protection (DATCP) announces that it will hold public hearings on a proposed rule related to Fertilizer and Pesticide Bulk Storage.
DATCP will hold 3 public hearings at the times and places shown below. DATCP invites the public to attend the hearings and comment on the proposed rule. Following the public hearings, the hearing record will remain open until February 17, 2006, for additional written comments.
Hearing Locations:
Tuesday, January 24, 2006
1 p.m. to 4:00 p.m. and 5 p.m to 7 p.m.
Prairie Oak State Office Building
2811 Agriculture Drive
Board Room
Madison, WI 53708
Handicapped accessible
Wednesday, January 25, 2006
1 p.m. to 4:00 p.m. and 5 p.m to 7 p.m.
DNR Headquarters (West Central Region)
1300 West Clairemont Ave.
Room 158/185
Eau Claire, WI 54701
Handicapped accessible
Thursday, January 26, 2006
1 p.m. to 4:00 p.m. and 5 p.m to 7 p.m.
Gruenhagen Conference Center, U.W. Oshkosh
208 Osceola Street
Oshkosh, WI 54901
Wolf River Room
Handicapped accessible
Free Rule Copy
You may obtain a free copy of this rule in any of the following ways (copies will also be available at the hearings):
By mailing a request to the Wisconsin Department Agriculture, Trade, and Consumer Protection, Division of Agricultural Resource Management, 2811 Agriculture Drive, Madison, WI 53708-8911.
By calling 608-224-4518.
By visiting DATCP's website at:
By visiting the Wisconsin Administrative Rules website at:
Written Comments
You may submit written comments for the hearing record, whether or not you attend any hearing. Written comments must be received no later than February 17, 2006. You may submit written comments in any of the following ways:
By mail to Matt Laak, Wisconsin Department of Agriculture, Trade and Consumer Protection, Division of Agricultural Resource Management, P. O. Box 8911, Madison, WI 53708-8911.
Small Business Regulatory Coordinator
DATCP's Small Business Regulatory Coordinator is Keeley Moll. You may contact the Small Business Regulatory Coordinator in any of the following ways:
By mail to Keeley Moll, Wisconsin Department of Agriculture, Trade and Consumer Protection, Office of the Secretary, P. O. Box 8911, Madison, WI 53708-8911.
By telephone at 608-224-5039.
Hearing Impaired Access
Hearing impaired persons may request an interpreter for these hearings. Requests must be made by Monday, January 11, 2006. You may request an interpreter in any of the following ways:
By writing to Matt Laak, Division of Agricultural Resource Management, 2811 Agriculture Drive, Madison, WI 53708-8911, telephone 608-224-4518. Alternatively, you may contact the DATCP TDD at 608-224-5058.
By mailing a request to the Matt Laak, Division of Agricultural Resource Management, Wisconsin Department Agriculture, Trade, and Consumer Protection, 2811 Agriculture Drive, Madison, WI 53708-8911.
By calling 608-224-4518.
By contacting the DATCP TDD at 608-224-5058.
Rule Analysis Prepared by the Department of Agriculture, Trade and Consumer Protection
The Department of Agriculture, Trade and Consumer Protection (“DATCP") currently regulates fertilizer and pesticide bulk storage facilities. DATCP regulates to ensure safe storage of fertilizer and pesticides, and to prevent spills that may harm persons, property and the environment.
This rule consolidates, reorganizes and modifies current rules. This rule regulates the construction, operation and maintenance of fertilizer and pesticide bulk storage facilities. This rule requires operators to file construction plans with DATCP before constructing certain bulk storage structures. This rule also creates new construction standards for some facilities.
Statutory Authority
Statute Interpreted: s.
94.645, Stats.
DATCP has broad authority, under s.
93.07 (1), Stats., to adopt rules to implement laws under its jurisdiction. DATCP has specific authority to regulate fertilizer and pesticide bulk storage under s.
94.645, Stats., and has rule making authority for that purpose under s.
94.645 (3), Stats.
Rule Coverage
This rule applies to commercial facilities that store unpackaged bulk fertilizer or pesticides. This rule does not apply to any of the following:
•
Manure storage.
• On-farm storage, mixing or loading of fertilizer or pesticides for on-farm use (not for sale or distribution).
• Facilities that store only packaged fertilizer or pesticides.
Rule Consolidation
DATCP currently administers separate bulk storage rules for fertilizer and pesticides. Since many facilities store fertilizer and pesticides, this rule consolidates fertilizer and pesticide bulk storage rules in a single rule chapter. This consolidation will make it easier for storage facility operators to understand and comply with the rules.
Effect on Existing Facilities
This rule establishes some new construction standards for fertilizer and pesticide storage facilities. But the new standards apply only to structures that are constructed or substantially altered on or after the effective date of this rule. Routine maintenance and repair is not considered a substantial alteration.
Spill Prevention and Cleanup Costs
DATCP currently administers an agricultural chemical cleanup program, funded by fertilizer and pesticide license fees. Under that program, DATCP compensates facility operators for fertilizer and pesticide spill cleanup costs. Proper construction and maintenance of storage facilities can reduce spills and spill cleanup costs.
This rule does not change the agricultural chemical cleanup program. But by improving storage facility construction and maintenance, this rule will help minimize spills and spill cleanup costs. That will help to control costs under the agricultural chemical cleanup program.
Rule Contents
Construction Plans
Under current rules, fertilizer and pesticide bulk storage facilities must be constructed to certain standards. A professional engineer is often involved. However, current rules do not require plan review by DATCP or a professional engineer.
Under this rule, at least 21 days before an operator constructs or substantially alters a storage facility, the operator must file all of the following with DATCP:
• Plans for the construction or alteration (design specifications).
• A signed written statement by a professional engineer, certifying that the plans comply with this rule.
• The approximate date on which the operator plans to start construction.
DATCP may review and comment on plans filed under this rule, but is not required to do so. A failure to comment does not signify approval. An operator is not required to obtain DATCP approval, but construction must conform to this rule and to the plans filed with DATCP.
An operator may not deviate from the plans without prior written notice to DATCP. DATCP may, in its discretion, inspect the construction (DATCP is not required to inspect). The operator or a person chosen by the operator must inspect the construction of new concrete structures to ensure that the construction conforms to plans filed with DATCP. The operator must file a copy of the inspection report with DATCP.
Under this rule, as under current rules, DATCP may grant a variance from applicable requirements if DATCP finds that a nonconforming feature will provide substantially equivalent protection for waters of the state. This rule clarifies that an operator must submit a variance request in writing. The request must clearly identify the proposed nonconforming feature. If the nonconforming feature affects a secondary containment structure or a mixing and loading pad, a professional engineer must certify that it will provide substantially equivalent protection for waters of the state. DATCP must grant or deny the request within 30 days, but may extend the response deadline for good cause.
Storage Facility Siting
Under this rule, as under current rules, storage and handling operations must be conducted over a mixing and loading pad or secondary containment structure designed to contain spills. Under this rule, new mixing and loading pads, secondary containment structures and bulk dry fertilizer buildings must be located at least 5 feet above bedrock and groundwater, at least 1,000 feet from any navigable lake, at least 300 feet from any navigable stream, and outside any 100-year floodplain. These siting limitations do not apply to the reconstruction, expansion or alteration of a mixing and loading pad, secondary containment structure or storage building that was in use prior to the effective date of this rule.
Water Supply Protection
Under this rule, storage facilities must comply with well setback requirements contained in chs.
NR 811 and
812, Wis. Adm. Code (the state well code). All water supplies to a storage facility must be protected against back flow. Protection may include an air gap at each water supply outlet, or a back flow protection device that complies with ch.
Comm 82, Wis. Adm. Code (the state plumbing code).
Storage Containers for Liquid Fertilizer or Pesticide
Under this rule, as under current rules, storage containers must be designed and constructed to prevent discharges, and must be located within a secondary containment structure. Storage containers must resist corrosion, puncture and cracking, and must be constructed of materials that do not react with stored products. Storage containers must be strong enough to hold the largest volume of product that may be stored in them.
This rule establishes new requirements related to bladder tanks, tank-in-tanks and field-erected storage containers constructed or substantially altered after the effective date of this rule. The storage containers must comply with construction standards in American Petroleum Institute standard API 650. An inspector certified under American Petroleum Institute Standard API 653 must inspect the storage containers at least once every 5 years, using inspection procedures specified by API 653.
This rule, like the current rules, requires an operator to anchor storage containers. Under this rule, anchor plates may not be embedded in the floor of a secondary containment structure unless the structure is specifically designed to handle the resulting stresses. Anchor plates may not be embedded in walls of a secondary containment structure.
Storage Container Appurtenances
This rule, like the current rule, establishes standards for storage container appurtenances such as valves, pipes, pumps, fittings, hoses and metering devices. Under this rule, as under the current rule, storage container connections must be equipped with shutoff valves. Appurtenances must be made of suitable materials, and must be designed to prevent discharges. Pipes and other appurtenances must be properly supported to prevent sagging and breakage.
Under current rules, storage containers must have gauging devices that show the volume of liquid in the containers. Liquid level gauging devices are no longer required under this rule. But if a storage container has a liquid level gauging device, the device must meet standards under this rule (the standards are similar to current rules). Under this rule, if a storage container has an external sight gauge, the site gauge must be anchored to the container at intervals of no more than 10 feet. This rule, like the current rules, prohibits external sight gauges on pesticide containers.
This rule establishes some new standards for appurtenances. Under this rule:
• Piping connections must be threaded, welded, fused, permanently band-clamped, or located over a mixing and loading pad or secondary containment structure (to prevent uncontained discharges from insecure connections).
•
Piping or appurtenances constructed or substantially altered after the effective date of this rule may not be placed below ground, in concrete, or through any mixing and loading pad or secondary containment structure.
• An operator must annually inspect and pressure test any pipe or appurtenance installed below ground, in concrete (to ensure that there is no hidden discharge to the environment).
•
An operator must annually inspect and test the joint between an appurtenance and any containment structure wall through which the appurtenance extends.
Storage Container Security
Under this rule, as under current rules, an operator must keep storage containers individually locked, or in a secure building or outdoor enclosure. Unlike current rules, this rule does not require individual locking of pesticide storage containers kept in a secure outdoor enclosure. This rule clarifies fencing requirements for outdoor enclosures.
Filling, Labeling and Venting Storage Containers
Current rules prohibit an operator from filling a storage container beyond capacity. This rule prohibits an operator from filling a storage container beyond 95% of capacity (except mini-bulk containers or containers kept at constant temperature). This rule, like current rules, requires proper labeling and venting of storage containers.
Underground Storage Prohibited
This rule, like current rules, prohibits underground storage of bulk liquid fertilizer, bulk liquid pesticide, or recovered discharges. Sumps constructed after the effective date of this rule may not be more than 2 feet deep, and may not have a capacity of more than 50 gallons (see below).
Storage Containers; Inspection and Maintenance
Current rules require weekly inspections of liquid levels and appurtenances, and monthly inspections of vents. Under this rule, an operator is no longer required to make these specific inspections (or keep records of them), but must inspect and maintain storage containers to minimize discharge risks.
Abandoned Storage Containers
Under this rule, as under the current rules, an operator must clean and rinse any abandoned storage container, and remove all appurtenances from the abandoned container. The operator must remove any underground storage container (including any sump that has a capacity of more than 50 gallons) that is abandoned.
Storage Structures; Dry Fertilizer or Pesticide
This rule expands and clarifies current requirements related to storage of dry bulk fertilizer or pesticide. Under this rule, dry bulk products must be stored in a fully enclosed building. However, an operator may store the following products outdoors:
•
Packaged products that are fully enclosed in durable weatherproof packages or containers.
•
Potassium chloride, or other products specifically approved by DATCP, if covered by a waterproof cover and kept on an asphalt concrete or portland cement concrete surface.
Storage structures must be constructed, inspected and maintained to withstand the pressure of stored products, to prevent discharges, and to prevent precipitation from contacting stored product. Stored product must be removed from abandoned storage facilities, and from facilities that fail to meet standards under this rule. Storage bins must be properly labeled to show fertilizer or pesticide contents.
Mixing and Loading Pads; General
Under this rule, as under current rules, fertilizer and pesticide mixing and loading must be done over a mixing and loading pad designed to catch and contain spills. This rule expands and clarifies current requirements for mixing and loading pads. Under this rule, a mixing and loading pad must comply with all of the following requirements (less rigorous requirements apply if the pad is used only for dry products):
•
It must be liquid-tight.
•
If constructed after the effective date of this rule, it must have a capacity of at least 1,000 gallons or 125 percent of the capacity of the largest storage container loaded or unloaded at the storage facility, whichever is less.
•
It must be constructed of concrete, according to standards specified in this rule. A mixing and loading pad that was in use prior to the effective date of this rule may be constructed of asphalt concrete, but it must be replaced by a portland cement concrete pad on or before December 31, 2009.
•
It must be served by a pump and storage container that can be used to recover and store spilled liquid. The pump must be self-activating or easily activated in response to a spill. The storage container must have an available capacity of at least 200 gallons at all times.
•
It must be designed and constructed to withstand foreseeable load conditions.
•
It must be protected from precipitation runoff from surrounding surfaces.
•
It may not have a precipitation drain (existing drains must be permanently plugged within 6 months after the effective date of this rule).
•
It must be inspected at the time of construction (if constructed on or after the effective date of this rule), to ensure that construction conforms to plans filed with DATCP.
•
It must be inspected and maintained on an ongoing basis. An operator must remove a leaking mixing and loading pad unless the pad is repaired and remains liquid-tight for at least 2 years after the repair.
A mixing and loading pad is not required for rail car unloading, or for loading fertilizer or pesticide into anhydrous ammonia nurse tanks, provided that those operations comply with alternative requirements under this rule.
Sumps
This rule expands and clarifies current rules related to sumps. Under this rule, if a mixing and loading pad or secondary containment structure drains to a sump, the sump must be all of the following:
•
Liquid-tight.
•
Served by a pump and storage container that can be used to recover and store spilled liquid. The pump must be self-activating or easily activated. The storage container must have an available capacity of at least 200 gallons at all times.
•
Inspected at the time of construction (if constructed on or after the effective date of this rule), to ensure that construction conforms to plans filed with DATCP.
•
Inspected and maintained on an ongoing basis. An operator must remove a leaking sump unless the sump is repaired and remains liquid-tight.
A sump constructed after the effective date of this rule must:
•
Be constructed of concrete.
•
Have a capacity of not more than 50 gallons.
•
Be no more than 2 feet deep. The sump depth may not exceed the shortest sump width.
•
Have walls and floor at least as thick, at every point, as the mixing and loading pad or secondary containment structure floor that drains to the sump.
•
Form part of a continuous surface, having an area of at least 15 ft. by 15 ft. and a capacity of 250 gallons, which is free of construction and control joints. If a sump is constructed as part of a concrete mixing and loading pad or secondary containment structure, it must be constructed in a continuous concrete pour with that pad or structure.
Secondary Containment Structures; General
Under this rule, as under current rules, liquid fertilizer and pesticide storage containers must be located within a secondary containment structure. There are limited exemptions for mobile, mini-bulk and empty storage containers. This rule does not exempt ordinary double-bottom storage containers.
Under this rule, as under current rules, a secondary containment structure must be designed, constructed and maintained to contain potential discharges of liquid fertilizer or pesticide from storage containers. Under this rule, as under current rules, the capacity of the secondary containment structure must be at least equal to the sum of the following:
•
125% of the capacity of the largest storage container located within the structure, or 110% if the structure is fully covered by a roof.
•
The total volume of discharged liquid that would be displaced by the submerged portions of all other storage containers, equipment or fixtures located within the structure if the structure were filled to capacity with discharged liquid.
Under this rule, a secondary containment structure must be designed to withstand the full hydrostatic head of any liquid that may be discharged to the structure. The structure must have a coefficient of permeability of not more than 1 x 10-6 cm/sec. Structure walls may not be taller than 4 feet (there are limited exceptions).
This rule, like current rules, prohibits liquid bulk pesticide storage in an outdoor secondary containment structure that also holds bulk fertilizer. Under this rule, all storage containers must be located at least 24 inches from the walls of the secondary containment structure and at least 24 inches from each other (there are some limited exceptions).
Secondary Containment Structures; Construction Alternatives
This rule expands and clarifies construction standards for secondary containment structures. Under this rule, a secondary containment structure may consist of one of the following:
•
Portland cement concrete structure. A secondary containment structure may be made of portland cement concrete. A portland cement concrete structure constructed after the effective date of this rule must be constructed according to standards specified in this rule. The operator or a person chosen by the operator must inspect the construction to ensure that construction conforms to plans filed with DATCP.
•
Block wall structure. A secondary containment structure may have concrete block walls if all of the following apply:
- The floor is made of poured portland cement concrete.
- The wall blocks are filled with portland cement concrete and joined with mortar.
- The structure was in use prior to the effective date of this rule.
- The structure is not used for more than one year after the effective date of this rule.
•
Synthetic liner. A secondary containment structure may be constructed of earth or other materials, and lined with a synthetic liner, if all of the following apply:
- The liner meets standards specified in this rule, and is installed to manufacturer specifications. A manufacturer's representative must supervise the installation.
- The liner manufacturer certifies that the liner is chemically compatible with all products stored within the structure, and guarantees liner effectiveness until a specified date. The operator must remove and inspect the liner by that date, and at least once every 5 years thereafter.
- The operator repairs and maintains the liner as necessary, according to manufacturer specifications.
- The liner rests on a proper base and is protected from potential damage above and below, as prescribed by this rule.
•
Prefabricated basin. A secondary containment structure may consist of one or more prefabricated basins constructed of steel or rigid synthetic material if the basins meet standards specified in this rule.
•
Steel structure constructed in place. A secondary containment structure may be constructed of steel if the structure meets standards specified in this rule. Structures built after the effective date of this rule must be at least ? inch thick at every point.
•
Earthen structure with earthen liner. A secondary containment structure may consist of an earthen structure with an earthen liner if all of the following apply:
- The liner contains only fertilizer (not pesticide) storage containers and, if the structure is built after the effective date of this rule, all of the storage containers were constructed on site.
- The liner meets specific rule requirements. The liner must be constructed of specified materials, must be at least 6 inches thick, must have a coefficient of permeability of not more than 1 x 10-6 cm/sec., and must be covered by an inorganic soil layer at least 6 inches thick. It must be maintained to prevent cracking and must be reconstructed at least once every 15 years.
•
Building floor; mobile and mini-bulk containers. A building floor may serve as a secondary containment structure for mini-bulk containers, and for mobile containers stored on the floor for less than 7 days, if the building is capable of containing a discharge from those containers.
•
Mixing and loading pad. A mixing and loading pad may serve as a secondary containment structure if it meets all of the requirements under this rule for a mixing and loading pad and secondary containment structure.
Tank-in-tank. A tank-in-tank system may serve as a secondary containment structure if all of the following apply:
The tanks are designed to meet the API 650 standards.
A liquid level monitoring device is installed to prevent overfilling.
The tank-in-tank is equipped with an effective leak detection system.
The leak detection system is inspected at least monthly.
If a leak were to occur, the leak must be reported to the department, and the tank be emptied and cleaned in agreement with the department conditions and inspected and repaired in compliance with API 653.
Bladder Tank. A bladder tank system may serve as a secondary containment structure if all of the following apply:
The tank is designed to meet the API 650 standard.
The bladder within the tank is at least 40 mils thick and chemically compatible with the products it is used to store.
A qualified installer installs the bladder tank.
A specially-designed shut-off valve and system is used.
A liquid level monitoring device is installed to prevent overfilling.
The bladder is protected with a soft liner.
The tank-in-tank is equipped with an effective leak detection system.
The leak detection system is inspected at least monthly.
If a leak occurs in the bladder, the leak is reported to the department, the tank is emptied and cleaned in agreement with the department conditions and the bladder repaired by a qualified person.
Secondary Containment Structures; Inspection and Maintenance
Under this rule, an operator must routinely inspect and maintain each secondary containment structure to ensure that the structure complies with this rule and does not leak. An operator must remove a leaking secondary containment structure unless the structure is repaired and remains liquid-tight.
Discharge Response
Under this rule, an operator must do all of the following whenever there is a discharge of fertilizer or pesticide at a storage facility:
•
Take immediate and appropriate action to contain and recover the discharge, and to mitigate risks to public health and the environment.
•
Report the discharge to the department of natural resources if a report is required under ch.
NR 706 (a report is not required if the discharge is fully contained in a mixing and loading pad, sump or secondary containment structure).
If a discharge is fully contained within a mixing and loading pad, sump or secondary containment structure, the operator may recover the discharge at any time before the end of the business day, except that:
•
The operator must recover discharged material from a mixing and loading pad, and rinse the pad, before allowing vehicles to drive through the discharge.
•
The operator must recover liquid (including discharges, rinse water or precipitation runoff) from a mixing and loading pad, sump or secondary containment structure whenever necessary to mitigate health or environmental risks, maintain available discharge containment capacity, or prevent corrosion or instability of storage containers.
Storage, Use and Disposal of Recovered Material
Under this rule, an operator must safely use or dispose of discharges, rinsate and precipitation runoff recovered from a mixing and loading pad, sump or secondary containment structure. Use and disposal must comply with applicable federal, state and local regulations. Under this rule:
An operator may deposit recovered material into a manure storage pit if the material contains no pesticide residue.
Recovered liquid, if held by the operator pending use or disposal, must be held in a storage container that complies with this rule.
Recovered liquid may be used as fertilizer or pesticide mix water if the resulting product complies with ATCP 40 (fertilizer) or ATCP 29 (pesticide).
Recovered fertilizer material may be applied to land free of charge, or distributed free of charge for application to land (the operator must disclose fertilizer or pesticide contents to the landowner). However, any other sale or distribution of the recovered material, as a fertilizer or pesticide, must comply with ATCP 40 (fertilizer) or ATCP 29 (pesticide).
Under current rules (ATCP 35), an operator needs a DATCP permit to landspread material recovered from the environment, as part of an environmental cleanup. But this requirement does not apply to material recovered from a mixing and loading pad, sump or secondary containment structure.
Discharge Response Preparedness
Under this rule, as under current rules, an operator must have a written discharge response plan for a storage facility. The operator must keep a copy of the plan at the storage facility (and nearest local office), and must make the plan available to the department and local emergency responders upon request. The operator must keep the plan current at all times.
Under this rule, as under current rules, a discharge response plan must include all of the following:
•
The name and telephone number of a responsible individual.
•
A site map showing the location of each storage container or bin, and the type of fertilizer or pesticide stored in that container or bin.
•
Procedures for responding to discharges at the facility.
•
Procedures for using or disposing of recovered discharges.
Under this rule, a discharge response plan must also include all of the following:
•
The Wisconsin spill reporting number (1-800-943-0003).
•
A DATCP contact number.
•
The names and telephone numbers of 2 local excavation contractors and 2 local earth hauling contractors.
•
Procedures for responding to discharges from mobile containers shipped from the facility.
Under this rule, as under current rules, an operator must have personnel, equipment and supplies available for discharge responses. Equipment must include pumps, recovery containers and personal protective equipment. Personnel must be trained in emergency response procedures.
Transporting Bulk Fertilizer or Pesticide
This rule creates new requirements related to the transportation of bulk fertilizer and pesticides by a storage facility operator. Under this rule:
•
An operator must transport bulk fertilizer and pesticides in a manner that prevents reasonably foreseeable and preventable hazards to persons, property and the environment.
•
Mobile containers must be securely anchored to transport vehicles. Other equipment on the transport vehicle that could come in contact with the mobile container must also be securely anchored to the vehicle.
•
Mobile containers must be protected from damage and unauthorized access.
•
An operator may not transport bulk fertilizer or pesticides in visibly broken, damaged or improperly sealed containers.
Environmental Assessments
Under this rule, an operator must check for possible environmental contamination whenever a mixing and loading pad, sump or secondary containment structure leaks, is removed, or remains out of service for over 5 years:
As part of the environmental assessment, the operator must sample and analyze soils, groundwater and other media, as necessary, to determine the existence, nature and scope of possible contamination. The operator must report the results of the environmental assessment to DATCP.
Recordkeeping
Under this rule, as under current rules, an operator must keep records related to a storage facility. This rule modifies current record keeping requirements. Under this rule, an operator must keep records related to all of the following:
•
Required API 653 inspections of bladder tanks, tank-in-tanks, and large storage containers constructed on-site (inspections, by a certified inspector, are required during construction and every 5 years after construction).
•
Required pressure tests of buried or embedded piping.
•
Required inspection and maintenance of storage containers and structures (this rule requires an operator to inspect and maintain storage containers and structures, as necessary, to maintain compliance with this rule).
This rule eliminates current record keeping requirements related to the following activities:
•
Annual inventory reconciliation (this rule repeals annual inventory reconciliation requirement).
•
Weekly inspections of liquid levels and appurtenances (this rule repeals weekly inspection requirements).
•
Discharges to the environment (an operator must report discharges to DNR per DNR rules, and must provide DATCP with the operator's environmental assessment related to any leaking storage container).
Under this rule, an operator must:
•
Keep API 653 inspection records for as long as the operator owns or operates the storage facility.
•
Keep records of pressure tests, inspections and maintenance for at least 3 years.
•
Keep the records at the storage facility or nearest local office.
•
Make the records available to DATCP for inspection and copying upon request.
Real Estate Sale or Lease; Disclosure
Under this rule, an operator must do all of the following before the operator sells or leases storage facility real estate for a different use (this rule does not limit other disclosures that may be required under other applicable law):
•
Notify DATCP of the impending sale or lease.
•
Disclose to the purchaser or lessee that the real estate has been used as a storage facility.
Inspection and Enforcement
DATCP may inspect a storage facility for compliance with this rule, and may take enforcement action as necessary. Under current state statutes, DATCP is authorized to do all of the following as necessary:
•
Conduct investigations and issue warning notices.
•
Inspect facilities, and collect product and environmental samples for testing.
•
Inspect and copy records.
•
Issue subpoenas and investigative demands.
•
Issue orders to correct violations of this rule. DATCP may issue orders on a summary basis, without prior notice or hearing, if necessary to protect public health or the environment.
•
Seek court action to enforce this rule or a DATCP order. This may include actions for injunction, or for a civil forfeiture of up to $1,000 per violation (each day of violation constitutes a separate offense). DATCP may also seek criminal penalties if appropriate (fine of up to $200 and 6 months in jail, or both).
•
Deny, suspend, revoke the operator's license as a fertilizer manufacturer or distributor or pesticide application business.
•
Order an operator to investigate and clean up environmental contamination resulting from a discharge. DATCP may order removal of structures, as necessary, for the environmental cleanup.
•
Deny reimbursement of environmental cleanup costs for which the operator would otherwise be eligible (for example, if a discharge occurs because of an intentional or grossly negligent violation of storage rules).
Standards Incorporated by Reference
Pursuant to s.
227.21, Stats., DATCP will request permission from the attorney general and revisor of statutes to incorporate the following standards by reference in this rule, without reproducing the complete standards in this rule:
•
American Petroleum Institute standard 650, Welded Steel Tanks for Oil Storage, 10th edition (September 1, 2003).
•
American Petroleum Institute standard 653, Tank Inspection, Repair, Alteration, and Reconstruction, 3rd edition (December 1, 2001).
•
Wisconsin Minimum Design Standards for Concrete Agrichemical Containment (February, 2005), written by Professor David W. Kammel, Department of Biological Systems Engineering, University of Wisconsin-Extension.
Copies of these standards will be kept on file with DATCP, the secretary of state and the revisor of statutes. Copies are not reproduced in this rule.
Fiscal Estimate
This rule will increase DATCP costs by approximately $24,400 per year. Additional staff time will be needed to train storage facility operators, review and comment on storage facility construction plans, and monitor compliance with construction standards and other requirements. This rule will not generate any new revenue to cover the increased costs, so DATCP will need to absorb the increase at the expense of other program activities. A complete fiscal estimate is attached.
This rule does not increase industry fees. By minimizing agrichemical discharges to the environment, this rule may limit the long-term growth of reimbursement claims under the agricultural chemical cleanup program. That would have a positive effect on DATCP's agricultural chemical cleanup fund, which is financed by industry fees. However, DATCP cannot accurately estimate the impact at this time.
Business Impact
This rule applies to commercial operators who store unpackaged bulk fertilizer or pesticides for sale or distribution. Many of these operators are “small businesses." A complete small business analysis (“initial regulatory flexibility analysis") is attached.
This rule does not apply to any of the following:
•
Manure storage.
•
On-farm storage of fertilizer or pesticide for on-farm use (not for sale or distribution).
•
Facilities that store only packaged fertilizer or pesticides.
This rule establishes some new construction standards for fertilizer and pesticide storage facilities. These new standards apply to structures that are constructed or substantially altered after the effective date of this rule. This rule will not have a significant impact on an existing facility unless the operator substantially alters structures in that facility. Routine maintenance and repair is not considered a substantial alteration.
Under this rule, an operator must have construction plans reviewed by a professional engineer, and must submit the construction plans for discretionary review by DATCP. This may entail some additional costs for some operators, but will help prevent much more costly design and construction errors. This rule does not require DATCP pre-approval of new construction or alterations. This rule allows design flexibility, consistent with minimum standards.
Improved design and construction of storage facilities will minimize environmental contamination and costly cleanups that pose a large financial risk to storage facility operators. Environmental cleanup costs are typically much higher than preventive design and construction costs. Reduction of cleanup costs will also minimize financial demands on the industry-funded agricultural chemical cleanup program.
This rule reduces the overall recordkeeping burden for affected businesses (it adds some recordkeeping requirements but eliminates others). Consolidation of current fertilizer and pesticide bulk storage rules will make the rules easier to read, understand and implement.
DATCP has worked with University of Wisconsin-Extension to spell out basic design standards for concrete structures, so that engineering firms will not have to design those structures from scratch. That will reduce design costs for facility operators.
Under
2003 Wis. Act 145, DATCP and other agencies must adopt rules spelling out their rule enforcement policy for small businesses. DATCP has not incorporated a small business enforcement policy in this rule, but will propose a separate rule on that subject. DATCP will, to the maximum extent feasible, seek voluntary compliance with this rule.
Environmental Impact
This rule will help prevent environmental damage from fertilizer and pesticide spills at bulk storage facilities. This rule will have no significant adverse environmental impact. An environmental assessment is attached.
Federal and Surrounding State Programs
Federal Programs
There are no comparable federal programs to regulate the storage of bulk fertilizer or pesticides (Wisconsin is a national leader).
Michigan
Michigan's bulk fertilizer and pesticide storage rules are similar to Wisconsin's. Michigan requires mixing and loading pads and secondary containment structures, but does not have minimum design or construction standards for those structures (nor does it require professional engineering review of design specifications).
Minnesota
Minnesota's bulk pesticide storage rules are similar, in many respects, to Wisconsin's. Minnesota has not promulgated bulk fertilizer storage rules, but has been enforcing proposed rules that are similar to Wisconsin's. Minnesota requires mixing and loading pads and secondary containment structures and has minimum design and construction standards for those structures. However, Minnesota does not require professional engineering review of design specifications.
Indiana & Iowa
Indiana and Iowa have rules that are similar to each other, and somewhat similar to Wisconsin's. They require mixing and loading pads and secondary containment structures, but they do not set minimum design or construction standards or require professional engineering review of design specifications.
Illinois
Illinois has rules that are somewhat similar to Wisconsin's. Illinois requires mixing and loading pads and secondary containment structures, and Illinois also sets minimum design or construction standards or requires professional engineering review of design specifications.
Notice of Hearings
Natural Resources
(Fish, Game, etc.)
NOTICE IS HEREBY GIVEN that pursuant to ss.
29.885 (4),
169.20 (4),
169.21 (3),
169.36 (9) (d),
169.39 (2) and
(3), Stats., interpreting ss.
29.885 (4),
169.06 (3m),
169.20 (4),
169.21 (3),
169.36 (9) (d),
169.39 (2) and
(3), Stats., the Department of Natural Resources will hold public hearings on revisions to chs.
NR 12,
16 and
17, Wis. Adm. Code, relating to hound dog training and trialing on captive wild animals.
2003 Wisconsin Act 239 provided the ability to use captive coyote, fox and bobcat to train hunting dogs (hounds). Section
169.39 (2), Stats., requires the Department to promulgate and enforce rules for the housing, care, treatment, enrichment, feeding and sanitation of wild animals subject to regulation under ch.
169, Stats. In addition, this section goes on to state that the wild animals (in this case fox, coyote and bobcat) receive humane treatment, be held in sanitary conditions and that they receive adequate housing, care and food.
The proposed rules allow for the permitted use of nuisance-trapped coyotes in licensed dog training enclosures. The rule also allows for exceptions to the current pen specifications, humane handling, care, treatment and transportation of coyote, fox and bobcat in ch.
NR 16. Additionally the rule creates new definitions pertaining to hound dog training enclosures. The rule goes on to clarify that bobcat, coyote and fox may be used under the authority of a hound dog training, dog club or dog trial license.
The most significant portion of this rule is the creation of the conditions under which coyotes, fox and to a lesser degree rabbits can be used within hound dog training enclosures and establishes a special hound dog training permit. Specifically this rule establishes the enclosure size and fencing requirements, the density of captive wild animals, housing and care requirements as well as disease prevention, and dog use and licensing requirements. The rule requires that, other than the 75 acre requirement, all current facilities will have to obtain an enclosure permit and comply with all provisions including fence sizes and animal densities.
All existing facilities that are operating legally under the authority of a hound dog or dog club training license, that are 60 acres in size, shall be grandfathered under this rule and will be allowed to obtain and renew their hound dog training enclosure permit. However, once the enclosure permit expires and is not renewed, the grandfathered enclosure may not be reissued unless the 75 acre requirement is met.
The rule also establishes the legal sources for obtaining captive coyote, fox, bobcat, raccoon and rabbits for use in dog training and trialing activity. The intent of these rule is to help assure that captive animals with diseases do not get introduced into this state.
Finally, the rule establishes record and reporting requirements for hound dog training and trialing.
NOTICE IS HEREBY FURTHER GIVEN that pursuant to s.
227.114, Stats., the proposed rules may have an impact on small businesses. The initial regulatory flexibility analysis is as follows:
a. Types of small businesses affected: Hound dog training enclosures that offer training opportunities for individuals seeking to train hounds to track and pursue game, utilizing captive coyote and fox for a fee.
b. Description of reporting and bookkeeping procedures required: Records include a record of all dogs released into the enclosure and records of the number, species and source of all captive wild animals released into the hound dog training enclosure.
c. Description of professional skills required: No professional skills are necessary.
NOTICE IS HEREBY FURTHER GIVEN that the Department has made a preliminary determination that this action does not involve significant adverse environmental effects and does not need an environmental analysis under ch.
NR 150, Wis. Adm. Code. However, based on the comments received, the Department may prepare an environmental analysis before proceeding with the proposal. This environmental review document would summarize the Department's consideration of the impacts of the proposal and reasonable alternatives.
NOTICE IS HEREBY FURTHER GIVEN that the hearings will be held on:
Tuesday, January 10, 2006 at 6:30 p.m.
John Muir Middle School
1400 W. Stewart Street
Wausau
Thursday, January 12, 2006 at 6:30 p.m.
Gathering Waters & Glaciers Edge Rooms
DNR South Central Region Hdqrs.
3911 Fish Hatchery Road
Fitchburg
NOTICE IS HEREBY FURTHER GIVEN that pursuant to the Americans with Disabilities Act, reasonable accommodations, including the provision of information material in an alternative format, will be provided for qualified individuals with disabilities upon request. Please call Kurt Thiede at (608) 267-2452 with specific information on your request at least 10 days before the date of the scheduled hearing.
Fiscal Estimate
The proposal will increase agency's cost and will not be absorbed within agency's budget.
The proposed rule and fiscal estimate may be reviewed and comments electronically submitted at the following Internet site: adminrules.wisconsin.gov. Written comments on the proposed rule may be submitted via U.S. mail to Mr. Kurt Thiede, Bureau of Wildlife Management, P.O. Box 7921, Madison, WI 53707. Comments may be submitted until January 13, 2006. Written comments whether submitted electronically or by U.S. mail will have the same weight and effect as oral statements presented at the public hearings. A personal copy of the proposed rule and fiscal estimate may be obtained from Mr. Thiede.
Notice of Hearing
Natural Resources
(Fish, Game, etc.)
NOTICE IS HEREBY GIVEN that pursuant to ss. ss.
26.39 (7) and
227.11 (2) (a), Stats., interpreting s.
26.39 (7), Stats., the Department of Natural Resources will hold a public hearing on the creation of s.
NR 47.92, Wis. Adm. Code, relating to master logging certification scholarships.
2005 Wis. Act 25 created s.
26.39 (7), Stats., which directs the DNR to promulgate rules that establish criteria for a scholarship grant program to assist individuals who are seeking master logger certification through the Wisconsin Professional Loggers Association (WPLA). The master logger certification program is a performance-based program copyrighted and sanctioned by the American Loggers Council that establishes national standards of performance for the logging profession. Wisconsin's master logger program has been in existence for approximately two years. It is currently being administered through the Wisconsin Professional Loggers Association and s.
26.39 (7), Stats., continues to provide for that arrangement.
The proposed rules establish the purpose, applicability, definitions, application and grant procedure, general provisions, accountability and audit procedures, and termination provisions of the program. Scholarships would pay up to 50% of the cost towards an individual's application fee. It would offset part of the program cost of processing applicants for Wisconsin Master Logger consideration. The funding would be applied as a credit towards an individual's application fee which includes: costs incurred during the audit process, training related to the audit process, information and outreach to prospective applicants, and record-keeping and administrative costs directly related to the program.
NOTICE IS HEREBY FURTHER GIVEN that pursuant to s.
227.114, Stats., it is not anticipated that the proposed rule will have an economic impact on small businesses. The Department's Small Business Regulatory Coordinator may be contacted at
SmallBusinessReg.Coordinator@dnr.state.wi.us or by calling (608) 266-1959.
NOTICE IS HEREBY FURTHER GIVEN that the Department has made a preliminary determination that this action does not involve significant adverse environmental effects and does not need an environmental analysis under ch.
NR 150, Wis. Adm. Code. However, based on the comments received, the Department may prepare an environmental analysis before proceeding with the proposal. This environmental review document would summarize the Department's consideration of the impacts of the proposal and reasonable alternatives.
NOTICE IS HEREBY FURTHER GIVEN that pursuant to ss.
26.39 (7),
227.11 (2) (a) and
227.24, Stats., interpreting s.
26.39 (7), Stats., the Department of Natural Resources will hold a public hearing on Natural Resources Board Emergency Order No. FR-43-05(E) relating to master logging certification scholarships. This emergency order took effect on November 15, 2005.
NOTICE IS HEREBY FURTHER GIVEN that the hearing will be held on:
Monday, December 12, 2005 at 9:00 a.m.
Video conference participation will be available at:
Room 139, State Office Building
718 W. Clairemont Ave.
Eau Claire
DNR Regional Headquarters
107 Sutliff Avenue
Rhinelander
NOTICE IS HEREBY FURTHER GIVEN that pursuant to the Americans with Disabilities Act, reasonable accommodations, including the provision of information material in an alternative format, will be provided for qualified individuals with disabilities upon request. Please call Jeff Barkley at (608) 264-9217 with specific information on your request at least 10 days before the date of the scheduled hearing.
Fiscal Estimate
Proposal will increase agency's cost but can be absorbed within agency's budget.
The emergency rule, proposed rule and fiscal estimate may be reviewed and comments electronically submitted at the following Internet site: adminrules.wisconsin.gov. Written comments on the rules may be submitted via U.S. mail to Mr. Jeff Barkley, Bureau of Forest Management, P.O. Box 7921, Madison, WI 53707. Comments may be submitted until December 15, 2005 Written comments whether submitted electronically or by U.S. mail will have the same weight and effect as oral statements presented at the public hearings. A personal copy of the proposed rule and fiscal estimate may be obtained from Mr. Barkley.
Notice of Hearings
Natural Resources
(Environmental Protection - General)
NOTICE IS HEREBY GIVEN that pursuant to ss.
227.11 (2) (a) and
281.15, Stats., interpreting ss.
281.11 and
281.15, Stats., the Department of Natural Resources will hold public hearings on revisions to ss.
NR 102.10 and
102.11, Wis. Adm. Code, relating to listing additional waters as Outstanding or Exceptional Resource Waters. Outstanding and Exceptional Resource Waters (O/ERW) are waters which are characterized as being valuable or unique from various standpoints including fisheries, hydrology, geology and recreation.
In August 2004 the Department received a petition from various conservation organizations requesting that the Department designate 100 water segments as Outstanding or Exceptional. Department staff have evaluated available information pertaining to the segments in question, and recommend that 30 segments be added to the existing list of Outstanding Resource Waters in s.
NR 102.10 and 12 segments be added as Exceptional Resource Waters in s.
NR 102.11. The waters are located in Ashland, Barron, Bayfield, Burnett, Douglas, Forest, Iron, Langlade, Lincoln, Oneida, Price, Rusk, Sawyer, Taylor, Vilas and Washburn counties.
NOTICE IS HEREBY FURTHER GIVEN that pursuant to s.
227.114, Stats., it is not anticipated that the proposed rule will have an economic impact on small businesses. The Department's Small Business Regulatory Coordinator may be contacted at
SmallBusinessReg.Coordinator@dnr.state.wi.us or by calling (608) 266-1959.
NOTICE IS HEREBY FURTHER GIVEN that the Department has made a preliminary determination that this action does not involve significant adverse environmental effects and does not need an environmental analysis under ch.
NR 150, Wis. Adm. Code. However, based on the comments received, the Department may prepare an environmental analysis before proceeding with the proposal. This environmental review document would summarize the Department's consideration of the impacts of the proposal and reasonable alternatives.
NOTICE IS HEREBY FURTHER GIVEN that the Department will hold a public information session for one-half hour prior to each hearing. Department staff will be available to answer questions regarding the proposed rule.
NOTICE IS HEREBY FURTHER GIVEN that the hearings will be held on:
Wednesday, January 4, 2006 at 6:30 p.m.
Holiday Inn Express
668 W. Kemp Street
Rhinelander
Thursday, January 5, 2006 at 1:30 p.m.
Room G09, GEF #2
101 South Webster Street
Madison
Wednesday, January 11, 2006 at 6:30 p.m.
Northern Great Lakes Visitor Center
29270 County Highway G
Ashland
Thursday, January 12, 2006 at 6:30 p.m.
Gov. Tommy Thompson Hatchery
951 W. Maple Street
Spooner
NOTICE IS HEREBY FURTHER GIVEN that pursuant to the Americans with Disabilities Act, reasonable accommodations, including the provision of information material in an alternative format, will be provided for qualified individuals with disabilities upon request. Please call Ms. Laura Bub at (608) 261-4385 with specific information on your request at least 10 days before the date of the scheduled hearing.
Fiscal Estimate
There is no expected fiscal effect at the state or local level.
The proposed rule and fiscal estimate may be reviewed and comments electronically submitted at the following Internet site: adminrules.wisconsin.gov. Written comments on the proposed rule may be submitted via U.S. mail to Ms. Laura Bub, Bureau of Watershed Management, P.O. Box 7921, Madison, WI 53707. Comments may be submitted until January 31, 2006. Written comments whether submitted electronically or by U.S. mail will have the same weight and effect as oral statements presented at the public hearings. A personal copy of the proposed rule and fiscal estimate may be obtained from Ms. Bub.
