Rule-making notices
Notice of Hearings
Commerce
NOTICE IS HEREBY GIVEN that pursuant to ss.
101.09 (3),
101.11,
101.14 (4) (a),
101.19, and
168.16 (4) of the
Wisconsin Statutes, the Department of Commerce will hold public hearings on proposed rules under chapters Comm 2, 10, 14, 47 and 48, of the
Wisconsin Administrative Code, relating to flammable, combustible and hazardous liquids.
The public hearings will be held as follows:
Date & Time:
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Location:
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Monday
April 30, 2007
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Thompson Commerce Center, Third Floor, Room 3B
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1:00 p.m.
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201 West Washington Avenue
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Madison, Wisconsin
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Wednesday
May 2, 2007
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Eau Claire State Office Bldg
Rm 105
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1:00 p.m.
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718 West Clairemont Avenue
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Eau Claire, Wisconsin
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Thursday
May 3, 2007
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Green Bay State Office Building, Room 152A
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9:00 a.m.
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200 North Jefferson Street
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Green Bay, Wisconsin
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Interested persons are invited to appear at the hearings and present comments on the proposed rules. Persons making oral presentations are requested to submit their comments in writing, via e-mail. Persons submitting comments will not receive individual responses. The hearing record on this proposed rulemaking will remain open until May 10, 2007, to permit submittal of written comments from persons who are unable to attend the hearings or who wish to supplement testimony offered at the hearings. All written comments should be submitted by e-mail to
srockweiler@commerce.state.wi.us. If e-mail submittal is not possible, written comments may be mailed to Sam Rockweiler, Department of Commerce, Division of Environmental and Regulatory Services, P.O. Box 14427, Madison, WI 53708-0427.
These hearings will be held in accessible facilities. If you have special needs or circumstances that may make communication or accessibility difficult at the hearings, please call Sam Rockweiler at (608) 266-0797 or (608) 264-8777 (TTY) at least 10 days prior to the hearing date. Accommodations such as interpreters, English translators, or materials in audio tape format will, to the fullest extent possible, be made available upon a request from a person with a disability.
Analysis
3. Explanation of Agency Authority. Under the statutes listed above, the Department has a responsibility to adopt and administer rules for safe storage, handling and use of flammable, combustible and hazardous liquids. The rules proposed in this order encompass fire safety, life safety and environmental safety aspects for flammable and combustible liquids and incorporate registration requirements for tanks that contain federally regulated hazardous substances.
4. Related Statute or Rule. The rules proposed in this order are related to rules in chapter Comm 14, which addresses fire prevention; chapter Comm 47, which addresses Petroleum Environmental Cleanup Fund Awards (PECFA); chapter Comm 48, which addresses grade specifications and inspection requirements for petroleum products; and chapters Comm 61 to 65, which address design and construction of public buildings and places of employment.
5. Plain Language Analysis. The rules contained in this proposal are primarily intended to establish design, construction, operation and maintenance standards for public safety, and to protect the waters of the state from contamination by liquids that are flammable or combustible or are federally-regulated hazardous substances. Many of the changes from the current code requirements are intended to update adopted national standards, address advances in technology, remove obsolete deadline requirements, and streamline administrative processes. Some of the changes are designed to address current trends and practices, emphasize life safety requirements, clarify ambiguous requirements, and provide consumer protection. The changes would also allow certain types of fueling from movable tanks, which is generally prohibited under the current code and its adopted standards. Wherever possible, conflicting rules in chapter Comm 10 would be repealed so that the requirements will be as specified in the adopted, current national standards. Consent to adopting all new or updated standards will be obtained from the Attorney General and the Revisor of Statutes prior to incorporating the standards into the rules. New requirements have been added to focus environmental protection on the components of a tank system that have been shown to have the greatest potential for releases to the environment. Requirements have also been added to maintain consistency for re-commissioning of out-of-service corrosion protection systems.
The proposed rules would also transfer regulation of small containers for flammable, combustible and hazardous liquids, and regulation of certain process containers for these liquids, from chapter Comm 10 to chapter Comm 14. This change would expand the scope of Comm 14 to include nearly all of the tanks and other containers which are being excluded from Comm 10 and which involve storage, transfer or dispensing of flammable, combustible or hazardous liquids. Although Comm 14 currently applies only to public buildings and places of employment, the expanded scope would extend beyond that limit because Comm 10 likewise now extends beyond that limit. However, this expanded scope would not extend to Indian reservation land, or to facilities that are either leased to the federal government or exempted by federal statutes or treaties. The expanded scope would also apply retroactively to any of these containers that exist on the effective date of this rule change, because Comm 14 otherwise now applies retroactively to existing conditions.
6. Summary of, and Comparison With, Existing or Proposed Federal Regulations. Federal regulations for aboveground storage tanks do not address fire and public safety issues or ground water pollution issues. Federal regulations for underground storage tanks do not address fire and public safety issues or surface water pollution issues. A summary and a comparison of the federal regulations that do address topics in chapter Comm 10 are included in the following comparison with rules in adjacent states.
7. Comparison With Rules in Adjacent States. Administrative - In Illinois and Minnesota, as in Wisconsin, ordinances or standards that are adopted locally can be more restrictive than the state rules. In Michigan, no municipality or fire protection district can be more restrictive than the state rules. Iowa allows municipal or fire protection district requirements to be more restrictive for aboveground storage tank applications, however, they cannot be more or less restrictive for underground storage tank applications.
Topical requirements. The following eight topics illustrate the most significant proposed changes to the current requirements in chapter Comm 10. A comparison of these proposed changes with federal regulations and with rules in adjacent states also follows.
A. Comm 10.100 (1) (a) 8. and 10.680 (3) (a) These sections would more specifically require plan review for new fueling systems using fuels with greater than 10 percent ethanol, and for converting an existing fueling system using fuels with less than 10 percent ethanol to a fueling system using up to 100 percent ethanol. These sections would also more specifically require cleaning of a tank during conversion of an existing system. The plan review requirement would also apply to new fueling systems using fuels with greater than 5 percent biodiesel, and to conversion of an existing system using fuels with less than 5 percent biodiesel to a fueling system using up to 100 percent biodiesel. The Department is currently requiring this plan review and tank cleaning through general criteria in chapter Comm 10.
A search of existing and proposed federal regulations, and existing rules in the adjacent states identified only Illinois as having a requirement for plan review for conversion of existing systems for both aboveground and underground storage systems. Michigan does not review changes to existing systems unless more than half of the system is changed – however, some local jurisdictions are more restrictive and may require a review. Iowa requires review for a conversion of an existing underground system only. Minnesota defers approval to the local jurisdiction, however the Minnesota Weights and Measures program has authority to mandate changes that they believe impact consumer protection.
These proposed rule changes are needed to ensure that components used in a storage tank system are compatible with the increased ethanol content of these alternative motor fuels. Incompatibility could result in fuel contamination from these components, and could cause these components to fail and thereby result in a release to the environment. Not removing water and residues from a tank before it is filled with fuel having more than 10 percent ethanol can result in formation of compounds that subsequently cause engine malfunctions.
B. Comm 10.400 (3) and Comm 10.500 (1) and (5) These sections would expand current requirements for providing double-wall piping and tanks, to apply to all new underground tanks and pressurized piping, including underground piping that serves an aboveground tank. These requirements would also apply when replacing more than half of an existing single-wall underground piping system. This expansion is in response to the federal Energy Policy Act of 2005, which (1) addresses secondary containment for federally regulated tanks or piping installed within 1,000 feet of any existing community water system, or any existing potable drinking water well or other potable water source, and (2) requires interstitial monitoring for any associated double-wall tanks or piping.
Note: Complaint forms are available from the Department of Regulation and Licensing, Division of Enforcement, 1400 East Washington Avenue, P.O. Box 8935, Madison, Wisconsin 53708, or from the department's website at:
http://drl.wi.gov.
These new requirements are justified considering that the results of a study sponsored by the US Environmental Protection Agency indicate that piping failures cause over 17 percent of all environmental releases associated with storage tanks, piping and dispensers. These proposed rule changes would reduce environmental contamination from undetected piping failures, while at the same time satisfying the new federal regulations in the Energy Policy Act. Michigan, Illinois, Iowa and Minnesota will be modifying their rules, where needed, to include these same requirements (double-wall tank and piping for new and replacement systems) to satisfy the new federal regulations, which became effective on February 8, 2007.
C. Comm 10.400 (3), 10.500 (5) and Comm 10.615 (5) These sections would newly require liquid-tight containment sumps under and around all existing and new buried piping connections – including connections at fueling dispensers, transition sumps, and submersible pumps for tanks. A five-year period is proposed for upgrading existing equipment to meet this requirement. This requirement is in response to the federal Energy Policy Act of 2005.
Michigan has required installation of containment sumps since the early 1990's. Illinois requires installation of containment sumps when new piping systems are installed or when underground piping is replaced. Minnesota requires installation of containment sumps when new piping systems are installed. Iowa does not have any specific rule for containment sump installation, but is currently evaluating a rule revision that includes this requirement.
This requirement is necessary considering that the results of a study sponsored by the US Environmental Protection Agency indicate that over 34 percent of releases from components for underground storage tank systems occur where connections are made in piping and at dispensers. Because of widespread improvement in otherwise reducing leaks from tanks and piping, these connections are now the single-most susceptible portion of a tank and piping system, for having releases or spillage, other than at the spill buckets that are used during fuel deliveries. Site review staff in the Division's PECFA program believe that contamination levels which are increasing at current remediation sites or which are appearing in post-remediation monitoring at other sites is the result of migration of under-the-dispenser contamination. Installing containment sumps will allow for detection of leaks, and repair of piping- or component-connection failures before a significant environmental release occurs. These installations will also achieve compliance with the federal regulations in the 2005 Energy Policy Act that became effective on February 8, 2007. Michigan, Illinois, Iowa and Minnesota are expected to soon adopt these same requirements, to satisfy the new federal regulations.
D. Comm 10.410 This section would specifically require an overfill alarm when filling reaches 90 percent of full, and an automatic shutoff at 95 percent, for aboveground storage tanks that are not located within a dike.
These requirements are currently included indirectly in Comm 10, through adoption of an NFPA 30 standard. However, they have often been overlooked, so they are now being emphasized by inclusion directly in Comm 10.
During tank filling, federal spill prevention, control and countermeasure regulations (
40 CFR 112) require high-liquid-level alarms, with an audible or visual signal at a constantly attended operation or surveillance station. These federal regulations also require high-liquid-level, pump-cutoff devices that are set to stop flow at a predetermined container-content level. Michigan, Minnesota and Iowa have overfill-protection requirements for any tank not located within a dike, which are substantially the same as the federal regulations and these proposed Comm 10 requirements. Illinois does not have overfill-equipment requirements for aboveground storage tanks – however, during loading and unloading of tank trucks and tank wagons, a person must be present and in charge at all times,
and overfill protection may be required by a local municipality or fire protection district
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These requirements are justified considering that the results of a study sponsored by the US Environmental Protection Agency indicate that over 23 percent of releases from shop-fabricated aboveground storage tanks are caused by overfills, and the majority of tanks in service are shop-fabricated. Emphasis on preventing overfills is necessary not only for protection of the environment but also for fire safety.
E. Comm 10.505 This section would specifically require an overfill alarm or flow restriction when filling reaches 90 percent of full, and an automatic shutoff at 95 percent, for underground storage tanks.
These requirements are currently included indirectly in Comm 10, through adoption of an NFPA 30 standard. However, they have often been overlooked, so they are now being emphasized by inclusion directly in Comm 10.
Federal regulations only require the owner or operator to (1) ensure that before a tank is filled, the volume available in the tank is greater than the volume of the product to be transferred to the tank; and (2) ensure that the transfer operation is constantly monitored. Michigan, Minnesota, Illinois and Iowa have overfill protection requirements for underground storage tanks, that are substantially the same as these proposed Comm 10 requirements.
These requirements are justified considering that the results of a study sponsored by the US Environmental Protection Agency indicate that over 19 percent of underground storage tank releases are caused by spill/overfill incidents. However, the most significant justification for dual overfill protection is that several major catastrophic incidents have occurred during the past few years because of failure of a single overfill method. In one situation, two occupants of a car were killed when an overfill resulted in flowing fuel that ignited and impinged on the vehicle. Emphasis on preventing overfills is necessary not only for fire safety but also for protection of the environment.
F. Comm 10.515 (8) This section would specifically require annual testing of leak detection equipment. This change is primarily for clarification purposes and would better express the intent of the current requirements. Michigan, Illinois, Iowa, Minnesota and the federal regulations all require annual testing of leak detection equipment. Under the current rules, there has been some confusion as to what “testing" means; this section would clarify that the test must include an induced leak for a 3.0 gallon-per-hour detection limit.
G. Comm 10.535 This section would change the inspection frequency for an internal lining of an underground storage tank from an initial inspection period of 10 years and every 5 years thereafter, to an initial inspection period of 5 years and every 5 years thereafter.
Federal regulations have allowed lining of underground storage tanks as one of the upgrade methods during implementation of nationwide corrosion protection for underground tanks, beginning in the late 1980's. The initial lining inspection after the tank is lined was set at 10 years, to be followed by an inspection frequency of every 5 years thereafter. Michigan, Illinois, Iowa and Minnesota recognize the 10/5-year schedule for existing lined tanks – however, Michigan and Iowa do not allow new tank lining installations. Minnesota, Illinois and this proposed Comm 10 rule will continue to allow interior lining of tanks.
This proposed rule change in the initial internal inspection frequency is needed due to recent, increased evidence that many tank internal linings fail within the first five years of installation and subsequently do not maintain the expected corrosion protection.
H. Comm 10.900 (1) This section would expand current requirements for financial responsibility to apply to aboveground storage tanks, including tank wagons, fuel delivery barges and tanks on non-solid fill piers.
Generally, there are no federal or adjacent-state financial responsibility requirements for aboveground storage tanks. Michigan, Illinois, Iowa and Minnesota do not address use of tank wagons or fuel delivery barges. The national standards adopted in Comm 10 do not recognize, as an acceptable practice, transportation and dispensing by tank wagons or barges.
This requirement is necessary considering that the proposed Comm 10 rule changes recognize and regulate use of tank wagons, barges and tanks on non-solid fill piers. The need for regulation of these types of tanks was determined based on the increasing number of instances, and trends, where these tanks are being used. Due to the increased use and industry practices, the Department believes that the number of releases from these types of tanks may also increase, thereby justifying a financial responsibility requirement for covering the cost of cleaning up a spill to the environment.
8. Summary of Factual Data and Analytical Methodologies
Surveys of Wisconsin
mobile air conditioner refrigerant and repairs. The proposed changes to chapter Comm 10 were also developed with assistance from the Department's advisory committee for flammable, combustible and hazardous liquids. The members of that advisory committee are as follows:
Name Representing
Randy Sharvey Wisconsin Fire Inspectors Association
Erin Roth Wisconsin Petroleum Council
Tim Clay Wisconsin Federation of Cooperatives
Paul Knower WI Petroleum Equip. Contractors Assn.
Steve Danner Wisconsin Aviation Trades Association
Elizabeth Hellman Wisconsin Utilities Association
Gary Pate Wisconsin Insurance Alliance
John Reed WI Airport Management Association
Dale Safer Wisconsin Innkeepers
Bob Bartlett WI Petroleum Marketers & Convenience Store Association
9. Analysis and Supporting Documents Used to Determine Effect on Small Business or in Preparation of Economic Impact Report
The Department derived the cost estimates in the following section from input from contractors.
