Statute interpreted
Explanation of agency authority
DATCP has broad general authority under s.
93.07 (1), Stats., to adopt rules needed to interpret and implement laws under its jurisdiction. Under s.
97.41, Stats., DATCP may contract with local agents to license retail food establishments for DATCP. DATCP may set standards for local agents, and may spell out procedures for evaluating local agents. Subject to statutory limits, DATCP may require local agents to pay fees to compensate DATCP for training, evaluation and other services provided to local agents.
Background
DATCP licenses and inspects retail food establishments such as groceries, convenience stores and retail bakeries. DATCP may contract with local agents to license and inspect retail food establishments for DATCP. Local participation is voluntary. A local agent may set its own license fees, which may be higher (and typically are higher) than state fees. A retail food establishment licensed by a local agent does not need to be licensed by DATCP.
The local agent program is growing. DATCP currently contracts with 37 local agents (there were 21 local agents in 2000). DATCP trains, monitors and assists local agent staff, establishes performance standards, and evaluates the consistency and adequacy of local performance.
Local agents must pay an annual fee to compensate DATCP for its costs to train, evaluate and assist local agents. The fee is based on the number of retail food licenses issued by the local agent. The per-license fee is calculated as a percentage of the state retail food license fee, even if the local agent chooses to charge a higher license fee. The statutes authorize DATCP to charge up to 20% of the state license fee. DATCP originally charged a 20% fee, but in 2000 reduced the fee to 10%.
The current 10% fee is not adequate to cover DATCP costs. At the current rate, DATCP recovers only about half of its costs to train, evaluate and assist local agents. The current inadequate fee, combined with growing local participation, has produced a substantial DATCP budget deficit. In FY 2006-07, DATCP collected only $58,800 in fees from local agents, but incurred local agent costs of $117,800.
Rule contents
Local Agent Fees. This rule increases fees paid by local agents, to compensate DATCP for services provided to local agents. This rule increases the fee to 20% (currently 10%) of the state license fee amount. DATCP projects that the higher fee will generate adequate revenue to cover (but not exceed) DATCP's actual and reasonable costs as allowed by statute. Local agents may adjust their license fees to pass on the increased cost, if they wish to do so. Local agents may also opt out of the program at any time.
Local Agent Personnel; Credentials. Under current rules, local retail food inspections must be performed or supervised by public health sanitarians registered by the Wisconsin department of regulation and licensing. Under this rule, inspections may alternatively be performed or supervised by environmental health specialists registered by the national environmental health association.
Evaluation of Local Agents. Under current rules, DATCP must annually evaluate local agent performance. This rule changes the standards that DATCP uses, so that the standards more nearly conform to federal guidelines established by the United States food and drug administration (FDA). Under this rule, an annual evaluation may be based in part on a local agent self-assessment. The self-assessment must be conducted according to procedures spelled out in the agent agreement (procedures are generally based on the FDA guidelines).
At least once every 3 years, DATCP must conduct an on-site evaluation to determine local compliance with applicable laws and rules. Under current rules, the 3-year evaluation must include a survey inspection of randomly selected retail food establishments. Under this rule, a 3-year evaluation may include, but is not required to include, a survey inspection of retail food establishments.
Under this rule, in lieu of performing its own 3-year evaluation, DATCP may accept an equivalent evaluation performed by the Wisconsin department of health and family services (DHFS) pursuant to a cooperative agreement with DATCP (DHFS currently evaluates local agents that license and inspect restaurants for DHFS). An agreement could also provide for reciprocal DATCP evaluation of DHFS local agents, so that the 2 agencies could minimize duplication and maximize evaluation efficiency. There is no cooperative agreement at this time.
Comparison with adjacent states
Michigan. Michigan does not contract with local governments to conduct inspections.
Minnesota. Minnesota contracts with a few local health agencies to conduct retail food inspections. There is no fee to cover state oversight costs (oversight activities are covered by state general purpose revenue appropriations). Minnesota evaluates local agents according to FDA standards.
Illinois. Illinois delegates all retail food licensing and inspection authority to local government. There is no fee to cover state oversight costs (oversight activities are covered by state general purpose revenue appropriations). Illinois evaluates local agents according to FDA standards.
Iowa. Iowa contracts with local government to license and inspect retail food establishments. Iowa does not routinely evaluate local performance, but does occasional audits. There is no fee to cover state oversight costs (oversight activities, such as they are, are covered by state general purpose revenue appropriations). When Iowa does review local performance, it does so according to FDA standards.
Business Impact
This rule increases the fee that local governments must pay for services received from DATCP. Local governments may increase retail food license fees to cover the increased cost, but they are not required to do so. If a local agent passes on the full amount of its increased cost to retail license holders, the added cost allocated to each license holder may range from $4 to $56 per year per license holder. The actual amount will depend on the license holder's annual sales and food processing activities. This rule does not impose any additional recordkeeping or other requirements on retail food establishments.
Fiscal Estimate
This rule will increase DATCP revenues to cover (but not exceed) DATCP's actual and reasonable costs to administer the local agent program. Under current rules, DATCP annually collects $58,800 per year from all of its local agents. Under this rule, revenues will increase by $58,800 per year so that DATCP will receive approximately $117,600 per year. That is the approximate amount needed to cover DATCP's current annual cost of $117,800.
Under this rule, the 37 local agents will incur combined added costs of $58,800 per year, or an average of just under $1,600 per local agent. The local agent program is voluntary, so local governments may opt out of the program at any time. Local agents may also recover the increased cost by increasing retail food license fees, but they are not required to do so.
Notice of Hearing
Commerce
NOTICE IS HEREBY GIVEN that pursuant to ss.
101.02 (1),
145.02 (3) and
(4), and
145.245 (7) (c), Stats., the Department of Commerce will hold a public hearing on proposed rules under chapters Comm 81 to 87 relating to private onsite wastewater treatment systems.
Hearing Information
The public hearing will be held as follows:
Date and Time:
|
Location:
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November 27, 2007 Tuesday
10:00 A.M.
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Conference Room 3B
Thompson Commerce Center
201 W. Washington Avenue
Madison
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This hearing is held in an accessible facility. If you have special needs or circumstances that may make communication or accessibility difficult at the hearing, please call (608) 266-8741 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.
Submission of Written Comments
Interested persons are invited to appear at the hearing and present comments on the proposed rules. Persons making oral presentations are requested to submit their comments in writing. Persons submitting comments will not receive individual responses. The hearing record on this proposed rulemaking will remain open until December 7, 2007, to permit submittal of written comments from persons who are unable to attend the hearing or who wish to supplement testimony offered at the hearing. Written comments should be submitted to Roman Kaminski, at the Department of Commerce, P.O. Box 2689, Madison, WI 53701-2689, or Email at
roman.kaminski@wi.gov.
Analysis Prepared by Department of Commerce
Statutes interpreted
Statutory authority
Related statute or rule
Explanation of agency authority
Under s.
145.02, Stats., the Department of Commerce has the responsibility of safeguarding public health and the waters of the state relative to the construction, installation and maintenance of plumbing. One mechanism of the Department to fulfill this responsibility has been the promulgation of rules under chapters Comm 81 to 87 establishing standards for the design, installation, inspection and maintenance of private onsite wastewater treatment systems, POWTS and for administration of the Private Onsite Wastewater Treatment System Replacement or Rehabilitation Financial Assistance Program.
Section
145.20 (5), Stats., directs the Department to establish a maintenance program for POWTS. This section was established as part of
2005 Wisconsin Act 347.
Section
145.245 (7) (c), Stats., directs the Department to revise grant funding tables when certain thresholds are exceeded.
Summary of proposed rules
The proposed rule revisions are intended to update and clarify the existing rules governing the design, installation, inspection and maintenance for POWTS. The significant revisions proposed include:
Section
Comm 2.66 is amended to clarify fees charged for review of revisions of product submittals related to POWTS methods, technologies or site constructed components.
• Chapter
Comm 81 is amended to include a definition for “occasional occupancy". This is relative to maintenance intervals for POWTS.
• Changes to ch.
Comm 83 include numerous minor clarifications and additional administrative requirements and terminology.
• Additional administrative requirements include the implementation of a POWTS inventory and a maintenance reporting program as required by
2005 Wisconsin Act 347. Clarifications include delineation of governmental unit decision making authority and POWTS owner responsibilities.
• Changes to ch.
Comm 84 include minor clarifications.
• Changes to ch.
Comm 85 clarify language relating to processing of site and soil evaluation information.
Comparison with federal regulations
There are two existing federal regulations that address some of the activities that are regulated by this rule (Chapter
Comm 83).
40 CFR 144.80(e) addresses Class V Wells also known as Shallow Injection Wells. Specifically,
40 CFR 144.3, defines “Sanitary Waste" as including domestic wastewater. Chapter
Comm 83 addresses treatment and dispersal of domestic wastewater. Also,
40 CFR 144.3, defines “Wells or Injection Wells" as including certain septic systems. Class V regulations specifically address “Large Capacity Septic Systems" which are defined as systems receiving sanitary wastes from multiple dwellings or from non-residential establishments where the system has a capacity to serve 20 or more person per day. These systems are “authorized by rule" provided they meet two minimum federal requirements. 1. The owner or operator submits basic inventory information. 2. The injectate (wastewater) cannot endanger underground sources of drinking water. Chapter
Comm 83, Wis. Adm. Code, addresses Private Onsite Wastewater Treatment Systems (POWTS) which include septic systems that serve all structures residential and non-residential regardless of capacity. Owner information is required as part of the permitting process. Section
145.13, Wis. Stats., requires that chapter Comm 83, Wis. Adm. Code, comply with the provisions of chapter 160, Wis. Stats. Chapter
NR 140, Wis. Adm. Code, contains a list of substances that have preventative action limits and enforcement standards. This list is more specific than the current federal regulations. Chapter
Comm 83, Wis. Adm. Code, incorporates the applicable provisions of chapter 160, Wis. Stats., and chapter NR 140, Wis. Adm. Code.
40 CFR Part 122 addresses National Pollutant Discharge Elimination System (NPDES) permits. Chapter
Comm 83, Wis. Adm. Code, addresses large POWTS systems which are covered by Wisconsin Pollutant Discharge Elimination System (WPDES) permits that are issued by the Department of Natural Resources. The WPDES permit process is modeled after the NPDES permit process.
There are no proposed federal regulations that would address activities that are regulated by this rule making project.
Comparison with adjacent states
An internet search of the State of Illinois website revealed that the Illinois Private Sewage Code was last revised in 2003. Illinois Environmental Protection Agency regulates surface discharge (greater than 1,500 gpd) and “experimental" systems. Illinois Department of Public Health regulates surface discharging systems (less than 1,500 gpd) and all other systems that discharge below ground surface. The rule does not include requirements for maintenance reporting programs.
An internet search of the State of Iowa website revealed that the Iowa Onsite Wastewater Treatment and Disposal Code was last revised in 2003. In Iowa local boards of health have primary responsibility for onsite systems. The Iowa Department of Natural Resources has responsibility for systems that serve more than 15 people. The rule does not include requirements for maintenance reporting programs.
An internet search of the State of Michigan website revealed that Michigan does not have a statewide onsite sewage system code. Michigan Department of Environmental Quality under the authority of Part 22 Groundwater Quality Rules established the 1994 version of `The Michigan Criteria for Subsurface Sewage Disposal. These criteria are used by the Michigan Department of Environmental Quality and by 44 local health departments that develop their own rules to regulate single and two family systems. The Michigan Criteria do not include requirements for maintenance reporting programs.
An internet search of the State of Minnesota website revealed that Minnesota Rules Chapter 7080, Individual Sewage Treatment Systems (ISTS) was last revised in 1999. Counties/Local Governments issue permits for systems with less than 10,000 gpd flows. Minnesota Pollution Control Agency issues permits for systems with greater than 10,000 gpd flows. Local rules may include a maintenance reporting requirement.
Summary of factual data and analytical methodologies
The primary methodology for updating the POWTS rules, primarily chapters Comm 81 and 87, has been a review and assessment of the current rules by an advisory council. The members of the council represent many stakeholders involved in the POWTS industry, including designers, contractors, regulators, academics and manufacturers. (A listing of the council members is provided at the end of this analysis.)
The Department utilizes advisory councils to gather information on potential impacts in complying with the both the technical and administrative requirements of the codes. A responsibility of council members is to bring forth concerns their respective organizations may have with the requirements, including concerns regarding economic impacts. (Copies of the council meetings summaries are on file in the Safety and Building Division.)
Analysis and supporting documents used to determine effect on small business
The Department believes that the proposed rules would have a minimal additional impact on small business in light of the following:
The current chapter Comm 83 contains inspection, maintenance, servicing and reporting requirements for POWTS. Contractors involved in providing inspection, maintenance, servicing and reporting services will not have additional requirements to meet based on the proposed code revisions. The department does not believe that the proposed rules will increase the effect on small businesses over that imposed by the
2005 Wisconsin Act 347.
An economic impact report has not been required pursuant to s.
227.137, Stats.
Council Members and Representation
The proposed rules were developed with the assistance of the following Advisory Council:
POWTS Advisory Code Council
James Converse, Madison, UW Madison – Dept. of Biological Systems Engineering
Steven Crosby, Waunakee, Wisconsin Builders Association
Dale Dimond, Wausau, Marathon County Zoning
Patrick Essie, Madison, Wisconsin Precast Concrete Association
Thomas Gilbert, Madison, Wisconsin Department of Natural Resources
Don Murphy, Eagle, Wisconsin Liquid Waste Carrier Association
Michael O'Connell, Mount Horeb, Wisconsin Association of Plumbing, Heating, and Cooling Contractors
Chris Olson, Door County Sanitarian Office
Sue Schambureck, Reedsville, Wisconsin Onsite Wastewater Recycling Association
Todd Stair, Delafield, Wisconsin Onsite Wastewater Recycling Association
E. Jerry Tyler, Madison, UW Madison – Dept. of Soil Science
Copy of Rules
