Wisconsin Department of Agriculture, Trade and Consumer Protection
Initial Regulatory Flexibility Analysis
Rule Subject: Flammable, Combustible and Hazardous Liquids
Adm. Code Reference: ATCP 93
Rules Clearinghouse #: Not yet assigned
DATCP Docket #: 13-R-20
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 by liquids that are flammable or combustible or are federally regulated hazardous substances. Among other things, 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.
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Eliminates unnecessary notes and provisions no longer in effect.
Modifies outdated terms.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.
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
Small Business Affected
This rule will have a generally minimal impact on small businesses in the state. The majority of the proposed rule updates and reorganizes provisions in the current rules.
ATCP 93 incorporates approximately 75 standards by reference in the tables located in Section 200. Dependent on the nature of the entity, a business may need to purchase or access some of these standards but not all. Because the U.S. Environmental Protection Agency (EPA) requires many of the same standards, some businesses would likely bear this cost regardless of whether ATCP 93 requires them or not.
The new ATCP 93 updates, reorganizes, and moves portions of SPS chapters that affect the program into the DATCP chapters of the Wisconsin Administrative Code. For instance, ATCP 93.240 incorporates numerous certifications and enforcement provisions from SPS 305. Similarly, a table from SPS 302 currently used by the tanks program will be incorporated as ATCP Table 93.130. Small businesses should benefit from this streamlining.
Adopting certain provisions may have an economic impact on certain businesses dependent on the age and technology of their tank systems. DATCP does not believe these changes will incur significant costs for the agency or for regulated businesses:
93.505 (2) (a) 3. b. – DATCP proposes to include a site assessment for suspected or obvious releases with a tear, crack, or hole from spill basins. The site assessment could add costs.
93.515 (6) – there could be a hardware upgrade cost if a business uses stick to determine tank inventory; since most now use electronic, the costs should be minimal.
93.515 (11) – ullage testing and conversion could create additional costs if there is repeated non-compliance. Compliant businesses should see no financial effect.
93.545 (1) (j)-- puts Wisconsin in line with other states for putting older, single-walled tanks back into service or permanently closing them.
93.630 (2) (d) – a new section on irrigation operations could affect the subset of businesses who have irrigation operations.
For the most part, fees have not been changed in ATCP 93. However, some re-inspection fees and plan approvals under 93.115 and in Table 93.1605 could have an impact on business costs.
Some changes in ATCP 93 relate to manufacturer or industry requirements. Regardless of whether DATCP includes them in a rule, these changes in practice may occur simply because of the update of equipment and technology.
Reporting, Bookkeeping and other Procedures
The proposed rule continues to regulate tanks in Wisconsin, and there will continue to be reporting and record keeping attributable to the testing of those tanks and tank systems.
Small businesses or business organizations may decide to purchase some of the standards incorporated by reference in the tables in Section 200.