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
Changes to ATCP 93 fit into seven broad categories:
• To accept recommendations made by the Department of Safety and Professional Services prior to the program’s relocation to DATCP.
• To harmonize ATCP 93 with the current federal standards, especially those set out by the Environmental Protection Agency.
• To address reorganizational changes of the program that occurred during the transfer to DATCP from DSPS.
• To respond to questions raised by stakeholders and businesses regulated by ATCP 93.
• To update standards incorporated by reference.
• To address agency concerns about the responsibilities of Class A, B, and C operators.
• To clarify or improve an aspect of this rule.
Some changes to the rule do not fit one of the seven criteria. These included typographical errors, form number changes, name changes to certain documents, availability of documents (hyperlinks or through DOA Document Sales), eliminating provisions no longer in effect, or a need for more specific or clear phrasing.
DSPS Recommendations
DSPS recommended 232 changes of varying nature in the working draft sent during the program transfer to DATCP. Some were substantive (compliance with new recommendations), and some were more cosmetic (elimination of unnecessary words).
DSPS recommended changes to particular phrases throughout the rule. Where appropriate, the words, “storage tanks,” were changed to “storage tank systems” in order to be more accurate. DSPS recommended that where the words, “the requirements in,” appear throughout the rule, that they be deleted. The words “prior to” have been changed to “before.” Other word changes were suggested and taken to make the rule more succinct.
DSPS recommended an expansion of the general requirements in ATCP 93.230. In subs. (9) and (10), the safety standards increased for property and system maintenance. The new rule changes the title of sub. (13) from Deactivation of Vapor Recovery to Disconnecting and Discontinuing Vapor Recovery while creating subs. (14) and (15), Removing Water and Other Contaminants from Storage Tanks and Preparing Tanks for Changes in Fuel Type.
DSPS suggested numerous changes to subchapter IV (General AST Storage) that have been incorporated. These changes affect: secondary containment for piping, installation of piping, maintenance and repairs of tanks and other system components, and spill and overfill prevention.
In subchapter V (General UST Storage and Piping), DATCP accepted numerous DSPS suggestions addressing: electronic interstitial monitoring, secondary containment, flexible connections, tanks, piping, repairs, inspection and maintenance, record keeping, and spill and overfill prevention. Most especially, in subchapter V, DSPS recommended that 93.535 (Periodic Inspection and Repair of Lined Tanks) be rewritten to eliminate an outdated table, to incorporate new accepted industry standards, and to renumber and reorganize to increase understanding.
DSPS recommended changes that DATCP adopted in terms of water level in tanks under ATCP 93.605 (1) (g).
DSPS recommended a paragraph on irrigation operations in ATCP 93.630 (2) (d) that DATCP accepted.
DSPS recommended that three subsections be created to address biodiesel blends. The rule includes these as ch. ATCP 93.680 (5) to (7). DSPS offered several suggestions for changes to subchapter VII (Financial Responsibility) that DATCP chose to accept.
Changes Dictated by New EPA Standards
Two notes in ATCP 93.180 required revision to reflect new requirements and new penalties from the Federal government.
EPA released new standards for airport fueling in 2015. Therefore, ATCP 93.517 has been renamed Airport Hydrant System Requirements from Airport Hydrant Leak Detection Requirements and has been revised to meet the new testing requirements and standards established by EPA. To implement the new definitions required by these EPA changes, DATCP also repealed ATCP 93.050 (56) to create ATCP 93.050 (4m) in its place.
EPA also released new standards for statistical inventory reconciliation (SIR) as part of its 2015 changes. For that reason, ATCP 93.515 (6) needed to match the new federal requirements. DATCP also took the opportunity to increase the data accuracy and incorporate DSPS suggestions during the ATCP 93.515 (6) rewrite.
New standards in regard to ethanol blends required 30 day provisions to be added to ATCP 93.680 (4). The same provisions altered the DSPS recommendation for ATCP 93.680 (7).
Reorganizational Changes
Previously, the fee structure for the program resided in SPS 302 (Fee Schedule). In order to create a fee structure in DATCP rules, ATCP Table 93.1605 was added. However, references to SPS 302 that remained in ATCP 93 will be eliminated in the new rule. Since fees are addressed elsewhere in the proposed new rule, ATCP 93.160 will be repealed. Slight modifications to ATCP 93.1605 were made to address retesting.
SPS 302.51 included a table that described material review fees. This table transferred to ATCP 93 as Table 93.130. No modifications or increase to those fees occurred.
SPS 305.03 (Petitions for Variance) states, “An individual may submit a petition for variance to any rule in this chapter in accordance with ch. SPS 303.” Chapter SPS 303.03 describes how this submission worked. DATCP altered this process slightly to match Department processes and renumbered it ATCP 93.170. Subchapter I of Chapter SPS 305 addresses general requirements for Licenses, Certifications and Registrations. In order to incorporate those general requirements that DATCP has been using in its program, SPS 305.01 to 305.11, with the exception of SPS 305.03, as stated above, will become part of ch. ATCP 93.240 (Certifications and Enforcement). Specifically: SPS 305.01 (Application) became ATCP 93.240 (2)
SPS 305.02 (Fees) became ATCP 93.240 (3)
SPS Table 305.02 (Fees, Subchapter VIII) became ATCP Table 93.240
SPS 305.03 (Petitions for Variance) became ATCP 93.170
SPS 305.04 (Processing Times) became ATCP 93.240 (4)
SPS 305.05 (Mailing) became ATCP 93.240 (5)
SPS 305.06 (Terms) became ATCP 93.240 (6)
