DATCP Docket No. 13-R-20 Final Draft Rule
Rules Clearinghouse No. November 16, 2017
PROPOSED ORDER
OF THE WISCONSIN DEPARTMENT OF AGRICULTURE,
TRADE AND CONSUMER PROTECTION
ADOPTING RULES
The Wisconsin department of agriculture, trade and consumer protection proposes the following rule to repeal and recreate ch. ATCP 93; relating to flammable, combustible, and hazardous liquids in Wisconsin. _____________________________________________________________________________
Analysis Prepared by the Department
of Agriculture, Trade and Consumer Protection
This rule implements Wis. Stat. § 168.23 (1), which directs the Department of Agriculture, Trade and Consumer Protection (DATCP) to promulgate rules related to construction, maintenance and abandonment standards applicable to tanks for storage, handling or use of liquids that are flammable or combustible or are federally regulated hazardous substances, and to the property and facilities where the tanks are located, for the purpose of protecting the waters of the state from harm due to contamination. Statutes Interpreted
168.23 Rules. (1) The department shall promulgate by rule construction, maintenance and abandonment standards applicable to tanks for the storage, handling or use of liquids that are flammable or combustible or are federally regulated hazardous substances, and to the property and facilities where the tanks are located, for the purpose of protecting the waters of the state from harm due to contamination by liquids that are flammable or combustible or are federally regulated hazardous substances. The rule shall comply with ch. 160. The rule may include different standards for new and existing tanks, but all standards shall provide substantially similar protection for the waters of the state. The rule shall include maintenance requirements related to the detection and prevention of leaks. The rule may require any person supplying heating oil to any noncommercial storage tank for consumptive use on the premises to submit to the department, within 30 days after the department requests, the location, contents and size of any such tank. 168.23(2)(2) The department may transfer any information which the department receives under sub. (1) to any other agency or governmental unit. The department and any such agency shall treat the name of the owner and the location of any noncommercial storage tank which stores heating oil for consumptive use on the premises, required to be submitted to the department under sub. (1), as confidential and shall not permit inspection or copying under s. 19.35 of any record containing the information. 168.23(3)(3) The rule promulgated under sub. (1) may require the certification or registration of persons who install, remove, clean, line, perform tightness testing on and inspect tanks and persons who perform site assessments. Any rule requiring certification or registration shall also authorize the revocation or suspension of the certification or registration. The department may not require an individual who is eligible for the veterans fee waiver program under s. 45.44 to pay any fee that may be charged pursuant to such a rule. 168.23(4)(4) The department shall promulgate a rule specifying fees for plan review and inspection of tanks for the storage, handling, or use of flammable or combustible liquids and for any certification or registration required under sub. (3). 168.23(5)(5) 168.23(5)(a)(a) Subject to par. (b), in addition to any fee charged by the department by rule for plan review and approval for the construction of a new or additional installation or change in operation of a previously approved installation for the storage, handling or use of a liquid that is flammable or combustible or a federally regulated hazardous substance, as defined in s. 168.21 (3), the department shall collect a groundwater fee of $100 for each plan review submittal. The moneys collected under this subsection shall be credited to the environmental fund for environmental management. 168.23(5)(b)(b) Notwithstanding par. (a), an installation for the storage, handling or use of a liquid that is flammable or combustible or a federally regulated hazardous substance, as defined in s. 168.21 (3), that has a capacity of less than 1,000 gallons is not subject to the groundwater fee under par. (a). 168.28 (2) Inventory of storage tanks. The department shall undertake a program to inventory and determine the location of aboveground storage tanks and underground storage tanks. The department may require its deputies and any person engaged in the business of distributing petroleum products to provide information on the location of aboveground storage tanks and underground storage tanks.
Statutory Authority
Explanation of Statutory Authority
DATCP has specific authority, under Wis. Stat. § 168.23 (1), which directs the department to “promulgate rules related to construction, maintenance and abandonment standards applicable to tanks for storage, handling or use of liquids that are flammable or combustible or are federally regulated hazardous substances, and to the property and facilities where the tanks are located, for the purpose of protecting the waters of the state from harm due to contamination by liquids that are flammable or combustible or are federally regulated hazardous substances.” (fm) Rules and orders. All rules promulgated, and all orders issued, by the department of safety and professional services, that are determined by the secretary of administration to relate to the storage, use, and handling of flammable or combustible liquids or federally regulated hazardous substances under section 101.09, 2011 stats., and that are in effect on the effective date of this paragraph shall remain in effect until their specified expiration date or until amended or repealed by the department of agriculture, trade and consumer protection. Related Statutes and Rules
Wis. Admin. Code Chapter ATCP 94 addresses petroleum and other liquid fuel products. Wis. Stat. § 168.21 defines various terms that Chapter ATCP 93 addresses. Wis. Stat. § 168.25 grants the department the authority to enforce the statutes for petroleum products and dangerous substances. Section 9138 (fm) of 2013 Wisconsin Act 20 required DATCP to engage in rulemaking that would fully implement the transfer of program from the Department of Safety and Professional Services (DSPS). Wis. Admin. Code SPS 314 (Wisconsin Fire Prevention Code) and requirements in SPS 361 to 366 will continue to have an impact on aspects of this rule and the proposed rule refers to those SPS rules when appropriate. The new rule continues to refer to Wis. Admin. Code Chapters NR 679, 811, and 812. Plain Language Analysis
Background
During the 1980s and early 1990s, the Wisconsin Department of Industry, Labor, and Human Relations housed Wisconsin’s tanks and petroleum inspection programs. These programs transferred to the Wisconsin Department of Commerce in 1996. The programs again transferred from Commerce to DSPS as part of the 2011-13 Biennial Budget (2011 Wisconsin Act 32). With the enactment of 2013 Wisconsin Act 20 (the biennial budget bill), the State of Wisconsin transferred the Flammable, Combustible and Hazardous Liquids program (“tanks inspection program”) and the Petroleum and Other Liquid Fuel Products program (“petroleum inspection program”) from DSPS to DATCP. 2013 Wisconsin Act 20 authorized the transfer of existing administrative rules, in addition to the programs, from DSPS to DATCP (with the approval of the Secretary of the Department of Administration). Therefore, the Legislative Reference Bureau renumbered Chapter SPS 310 to Chapter ATCP 93. SPS 310 had been previously titled ILHR 10 and COMM 10 when enforced at the previous agencies. In 2008, the Department of Commerce completed an extensive and comprehensive update to COMM 10 that established many concepts and guidelines that now appear in ATCP 93; this represents the last time the rule received an extensive review until this current effort. Prior to the program’s transfer to DATCP on July 1, 2013, tanks inspection program and legal staff actively worked on rule changes to then SPS 310. DSPS published an approved scope statement in January, 2011. After the program transfer to DATCP, the DATCP Board approved a new scope statement in September, 2013.1 A working draft of the proposed DSPS rulemaking order also transferred to DATCP. DATCP evaluated this draft and incorporated many of those proposed changes into this proposed new chapter ATCP 93. DATCP also sought to bring the rule into alignment with current EPA standards and current generally accepted industry practices. The new rule also adds any new or updated standards incorporated by reference that had changed since the last major rule revision. DATCP considered recent stakeholder and staff comments for changes and for clarifying language throughout its process.
1The same scope statement also permitted the continued rulemaking for Chapter ATCP 94 (the former SPS 348). DATCP reviewed that rule separately and will recommend changes to that rule separately in a different format. DATCP reorganized ch. ATCP 93 to conform to other DATCP chapters of the Wisconsin Administrative Code. Generally, each ATCP chapter consists of an individual program or subject matter and is largely self-contained. In contrast, SPS chapters organize by function as well as by subject matter. For example, a number of individual DSPS programs (including tank inspection and petroleum inspection) relied on SPS 302 to designate fee amounts, SPS 303 to establish administrative procedures, SPS 305 to specify required licenses, certifications, and registrations, and SPS 310 for the content of the program. DATCP incorporated the pertinent topics into this newly reorganized chapter ATCP 93 presented for adoption to provide these in a single rule. DATCP shared the draft rule with selected stakeholders throughout the process. Stakeholders who received the draft rule in three increments included the Wisconsin Petroleum Council, the Wisconsin Petroleum Equipment Contractors Association, Wisconsin Petroleum Marketers and Convenience Store Association, the Cooperative Network, Kwik Trip, and WE Energies. Staff also talked about proposed changes and the progress of the effort at various meetings over the past two years.
Policy Alternatives. Do nothing. If the department does not alter the structure of the existing rules, its authority to administer the tanks and petroleum inspection programs will continue to rely on a non-statutory provision (Section 9138) of 2013 Wisconsin Act 20. This would become increasingly impractical and confusing as time goes on. The department has begun to seek statutory change separate from the rulemaking to clarify this authority. If the department does not implement the numerous technical updates, the rule will continue to be difficult to understand and will remain inconsistent with the latest industry standards. The rule will also fail to comply with the U.S. Environmental Protection Agency changes adopted in 2015. Since DSPS no longer uses the portions of the rules that affect the programs, it could eliminate provisions from its rules which would effectively leave no rules in place beyond that which has already transferred in SPS 310 as the current ATCP 93. Rule Content
General
This rule does all of the following:
• Repeals and recreates ATCP 93.
• Harmonizes Wisconsin’s program with federal EPA requirements.
• Updates and overhauls an administrative rule last significantly updated in 2008.2
• Addresses the various governmental reorganizations of the tanks inspection program.
• Updates all standards incorporated by reference.
• Eliminates unnecessary notes and provisions no longer in effect.
• Modifies outdated terms.
• Clarifies ambiguous language.
2While the last significant update was done in 2008, DATCP has made numerous technical rule changes affecting forms and hyperlinks over the past nine years.
Summary of Changes
