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.
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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
  Sections 168.23, and 168.28 (2), Wis. Stats.
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.
(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.
(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.
(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).
(5)(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.
(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
Statutory Authority:   Section 168.23 (1), Wis. Stats., and Section 9138 (fm) of 2013 Wisconsin Act 20.
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.”
The Wisconsin State Legislature asked DATCP to update its rules in Section 9138 (fm) of 2013 Wisconsin Act 20:
(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.
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