C.
The responsibilities for the Class B operator, in section
Comm 10.830 (2) (e), are expanded to include providing the Class C operator with specified, written instructions for fulfilling the Class C responsibilities; and those Class C responsibilities are described in greater detail in the specified instructions than in the EPA criteria. Similarly, additional text in section
Comm 10.830 (2) (f) clarifies that the Class B operator is responsible for ensuring that the Class C operator is present during all operating hours of typical tank systems for fueling facilities; and the circumstances where that presence is not required are specified. Further, section
Comm 10.842 (2) clarifies that the Class C operator must be trained to understand the required written instructions.
D.
In the prescribed acceptable training, in section
Comm 10.850 (2) (b), additional text clarifies that the training for a Class C operator must be provided by, or authorized by, an accredited Class A or Class B operator
for the facility where the Class C operator is employed. Consequently, a Class C operator could move from one facility to another that is operated by the same Class A or Class B operator – but would need new training and accreditation to be a Class C operator at another facility that is operated by a different Class A or Class B operator.
E.
In the retraining requirements, in section
Comm 10.880, a definition is included for “significant compliance," which applies beyond EPA's referenced guidance for release prevention and release detection. This definition is intended to foster consistency in enforcement, and is essentially copied from the definition of “substantial compliance" in the Wisconsin Fire Protection Code, chapter Comm 14, where it has been helpful for the past several years in auditing local fire departments.
The proposed rules include selection of the following options that are allowed in the EPA criteria:
A.
For the deadline for having a Class A, Class B and Class C operator, in section
Comm 10.820, a phase-in schedule is established that (1) applies EPA's August 8, 2012, deadline only to small businesses; and (2) applies an earlier, January 1, 2012, deadline to all other facilities. This phase-in would be consistent with the requirements in section
227.22 (2) (e) of the Statutes for allowing small businesses extra time to comply with new rules that have a significant economic impact, and could be helpful not only to small businesses but also to the Department and its regulatory and training partners in implementing this portion of the training program.
B.
In section
Comm 10.841 (2) (a), an option is included for any Class B operator to have site-specific training that is focused only on equipment used at the operator's facility.
C.
Section
Comm 10.850 (2) (a) 1. specifies a Wisconsin-based International Code Council
® training and certification process for Class A and Class B operators, as the base-level process. Discussions with ICC staff indicate several advantages of using this approach – particularly in combination with the equivalent, alternate training programs that are permitted for Class A and Class B operators in section
Comm 10.850 (2) (a) 2. The ICC process could include evaluation and certification of individuals who skip the training because they already have adequate knowledge about operating underground storage tank systems.
D.
Section
Comm 10.850 (4) includes, for Class A and Class B operators, reciprocity acceptance of training verification from other states that have equivalent training programs.
E.
The recordkeeping requirements in section
Comm 10.870 include keeping documentation of compliance only at each facility or at another, readily available site – rather than reporting that compliance to the Department or authorized agent.
The proposed rules do not include an EPA-referenced option of requiring renewal of the training.
Comparison with rules in adjacent states
Michigan:
Michigan is currently updating their 1998 rules for their UST program. They are working with stakeholders on the rules package and plan to have new rules promulgated within the next year. Included in the code update is the mandate for operator training, which will mostly mirror the EPA requirements. They are planning to require ICC certification and to require renewals every 2 years, and plan to limit the number of facilities that a Class B operator can oversee to 45. For facilities that are routinely attended, at least one Class C operator is expected to be present during all operating hours – and at unmanned facilities, fuel delivery personnel are expected to fulfill the Class C operator responsibilities, for the purpose of fuel deliveries. The draft rules include substantially greater detail than the EPA criteria, for the training that Class C operators must receive.
Minnesota:
Minnesota has developed a UST rule-revision draft that includes operator-training requirements and has sent it to their Revisor's Office for review, after which it will be released for public comment for 30 days. They expect to meet the August 8, 2009, EPA deadline for having the revised rule in place.
Some key points that Minnesota has included in their revised rule are as follows:
1. Training for operators will not always be mandatory. The operator will have the choice of taking only a test. If the operator fails the test, training by a State-approved trainer will be mandatory.
2. Trainers must be approved by the State in order to provide operator training.
3. Only Class A and Class B operators must pass a test.
4. Class B operators must be employees of the company that owns the facility. Class B operators will also be tested on site-specific equipment and functions. (No third-party contractors are permitted.)
5. An outside party likely will create an on-line testing platform.
6. The operator training is expected to be phased in over a 3-year period, with sequential deadlines that are based on telephone area codes.
7. For facilities that are routinely attended, at least one Class C operator is expected to be present during all operating hours – and at unmanned facilities, a sign must be posted showing the emergency shut-off procedures and the name, address and telephone number of the owner, operator or local emergency response personnel.
8. If a facility is found to have a significant-operational- compliance violation at the time of a State inspection, the Class B operator will be required to take training and pass another test.
Minnesota has begun meeting with a group of stakeholders that includes a wide spectrum of tank owners, to help develop the test questions for the operators.
Iowa:
Iowa has begun their rulemaking process for the operator-training requirements and has held internal meetings for developing draft rules. A stakeholder meeting was held in February to discuss options and get input.
Illinois:
Illinois is in the preliminary stages of rulemaking, and has not yet developed draft rules. The State Fire Marshall's office has contacted Wisconsin to survey our experiences with stakeholder meetings and to obtain a copy of our proposed rules.
Summary of factual data and analytical methodologies
The information from which the proposed operator-training rules were developed consisted of (1) the EPA criteria published in EPA-510-R-07-005, (2) existing and proposed rules from about 15 other states, and (3) personal contacts with staff from the International Code Council and with private-sector trainers for operators of underground storage tank systems.
The proposed miscellaneous changes to chapter Comm 10 were developed primarily from six regional training sessions the Department conducted statewide in January and February of 2009 in conjunction with implementing a comprehensive update of chapter Comm 10 that became effective on February 1, 2009.
The proposed rules 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 Shervey Wisconsin Fire Inspectors Association
Erin Roth Wisconsin Petroleum Council
Tim Clay Wisconsin Federation of Cooperatives
Tara Wetzel Wisconsin Transportation Builders
Association
Paul Knower Wisconsin Petroleum Equipment
Contractors Association
Scott Miller Wisconsin Fire Chiefs Association
Steve Danner Wisconsin Aviation Trades
Association
Elizabeth Hellman Wisconsin Utilities Association
Gary Pate Wisconsin Insurance Alliance
John Reed Wisconsin Airport Management
Association
Dale Safer Wisconsin Innkeepers
Bill Noel Wisconsin Paper Council
Matt Hauser Wisconsin Petroleum Marketers and
Convenience Store Association
Analysis and supporting documents used to determine effect on small business
The Department derived the cost estimates in the following section from input from the International Code Council and private-sector trainers for operators of underground storage tank systems.
Anticipated costs incurred by private sector
The base-level, International Code Council certification service has been adopted by California and Wyoming. The cost is about $150 per person – which covers the cost of the State and EPA reference material, and a test. The ICC service is a self-directed process where individuals purchase the State and federal regulations and pertinent publications, and then go to a test center to take the test. The cost for taking the ICC test, without the training, is $75.
If a private-sector group such as Petroleum Training Solutions (PTS) provides open-to-the-public training, like they currently provide in Oregon and other States, the charge should be about $325 per person. PTS is partnering with several petroleum-marketer associations in Oregon and other States to get reductions in cost, in exchange for marketing the classes within the respective associations. In Oregon, the fee for members of the Oregon Petroleum Marketers Association is $280.
In Kansas, the State pays for the training, and the cost is about $5,000 per classroom. (PTS prefers to limit class sizes to 35, but in Kansas they accommodated rooms of 50.) These sessions would cost approximately $125 to $150 per person.
Williams & Company also provides classroom training in Kansas, with opportunities for direct questions and answers, and they bring in UST equipment for hands-on training. The company prefers to conduct a class of at least 50 persons – and does some classes back-to-back to minimize travel costs. These sessions would cost approximately $125 to $150 per person. The company provides an open-book group test, and certifies the participants at the conclusion of the class. Testing can be designed any way the State desires. The company maintains a spreadsheet of the individuals who are certified, along with the site identification, and provides the list to the State of Kansas to use to verify training, during annual renewals of UST permits.
Williams & Company also provides two types of webinars – the first is a video Web broadcast of a speaker in front of a local audience, and other participants can access the presentation over the Web. The second is a log-in to a Web site where participants have audio via a phone line and watch a PowerPoint presentation on the Web site. The second is much less costly. The first may require a TV studio and production facilities, and broadcast services can be rather expensive. Depending on the number of participants and the type of webinar, these costs could range from $50 to $225, based on production costs of $10,000. The biggest difference between in-class training and on-line webinars is that for webinars, the participants do not have travel time and associated expenses, so the savings are immediate.
In Colorado, PTS will start presenting webinars in May, that will cost $325. Under this webinar model, the webinars will be free, and the fee will be collected when the test is taken from PTS.
The State of New Mexico estimates that classroom training for their Class A and Class B operators may range from $200 to $350 per person.
Costs for training Class C operators are not expected to be significant because all Class C training will be provided by, or authorized by, the Class B operator for the facility.
Small Business Impact
These rule changes may have an economic effect on any small business with at least one federally regulated underground storage tank containing a flammable, combustible or federally-regulated hazardous liquid. These economic effects are not expected to be significant, and are summarized above.
Any inquiries for the small business regulatory coordinator for the Department of Commerce can be directed to Sam Rockweiler, the agency contact person listed below.
Initial Regulatory Flexibility Analysis
Types of small businesses that will be affected by the rules.
Any small business with at least one federally regulated underground storage tank system containing a flammable, combustible or federally-regulated hazardous liquid.
Reporting, bookkeeping and other procedures required for compliance with the rules.
Each facility that has a tank system as described above must maintain documentation which (1) identifies the facility's Class A, Class B and Class C operators; (2) shows these operators have received the accreditation required by the rules; and (3) lists instructions the Class C operator is required to follow.
All Class A and Class B operators must be trained to understand the responsibilities prescribed in the rules, or pass a written examination demonstrating that understanding. All Class C operators must receive prescribed training that is provided by, or authorized by, an accredited Class A or Class B operator for the facility where the Class C operator is employed.
Types of professional skills necessary for compliance with the rules.
To receive the accreditation required in the rules, Class A, Class B and Class C operators must show they understand how to (1) safely operate and maintain underground storage tank systems and corresponding liquid fuel dispensing systems, including leak detection equipment; (2) appropriately respond to any spills, leaks or releases associated with these systems; and (3) appropriately maintain the records that chapter Comm 10 currently requires for these systems.
Rules have a significant economic impact on small businesses?
No
Environmental Analysis
The Department has considered the environmental impact of the proposed rules. In accordance with chapter Comm 1, the proposed rules are a Type III action. A Type III action normally does not have the potential to cause significant environmental effects and normally does not involve unresolved conflicts in the use of available resources. The Department has reviewed these rules and finds no reason to believe that any unusual conditions exist. At this time, the Department has issued this notice to serve as a finding of no significant impact.
Fiscal Estimate
There are no requirements in this proposal that should significantly affect either state or local government costs or revenues.
The anticipated costs that may be incurred by the private sector in complying with new requirements in the proposed rules are adequately described in the rule summary which immediately precedes the proposed rules.
Agency Contact Information
Sam Rockweiler
Wisconsin Department of Commerce
Division of Environmental and Regulatory Services
P.O. Box 14427
Madison, WI 53708-0427
telephone (608) 266-0797
Notice of Hearing
Government Accountability Board
NOTICE IS HEREBY GIVEN that pursuant to ss.
5.05 (1) (f) and
227.11 (2) (a), Stats., the Government Accountability Board will hold a public hearing to consider adoption of a rule to amend s.
GAB 1.28, Wis. Adm. Code, relating to the definition of the term “political purpose."
