DATCP Docket No. 13-R-20           Final Rule
Rules Clearinghouse   No. 17-092             September 18, 2019
The Wisconsin department of agriculture, trade and consumer protection adopts 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.
Statutes Interpreted
  Wis. Stat. §§ 168.23 and 168.28 (2).
Statutory Authority
  Wis. Stat. § 168.23 (1) 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 instructed the Department 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the effective date of this paragraph shall remain in effect until their specified expiration date or until amended or repealed by the department of agriculture, trade and consumer protection.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 Wis. Admin. Code ch. 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 ch. SPS 314 (Wisconsin Fire Prevention Code) and requirements in Wis. Admin. Code chs. 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 chs. NR 679, 811, and 812.
Plain Language Analysis
During the 1980s and early 1990s, the Wisconsin Department of Industry, Labor, and Human Relations (DILHR) 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). The Legislative Reference Bureau renumbered ch. SPS 310 to ch. 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. That retooling represents the most recent occasion upon which the rule received an extensive revision until this current effort.
Prior to the program’s transfer to DATCP on July 1, 2013, the tanks inspection program personnel and DSPS 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 an updated scope statement in October, 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 ch. ATCP 93.
1The 2013 scope statement of scope also authorized rulemaking for Chapter ATCP 94 (the former SPS 348). DATCP has been reviewing that rule separately and will recommend changes to that rule separately at a later date.
DATCP also sought to bring the rule into alignment with current EPA standards and current generally accepted industry practices. The new rule adds any new or updated standards, incorporated by reference, since the last major rule revision.
DATCP considered stakeholder and staff comments for changes and clarifying language throughout its process. Stakeholders who received the draft rule in three increments (June 2015, July 2016, and March 2017) included the Wisconsin Petroleum Council, the Wisconsin Petroleum Equipment Contractors Association, Wisconsin Petroleum Marketers and Convenience Store Association, 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 three years.
DATCP reorganized Wis. Admin. Code 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 that 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 upon SPS 302 to designate fee amounts; upon SPS 303 to establish administrative procedures; upon SPS 305 to specify required licenses, certifications, and registrations; and upon SPS 310 for the content of the program. DATCP consolidated the relevant topics into a newly reconstituted, unitary Wis. Admin. Code ch. ATCP 93 that is currently presented for adoption.
If the structure of the existing rules were to remain unaltered, DATCP’s authority to administer the tanks and petroleum inspection programs would continue to rely on a non-statutory provision, namely Section 9138 (fm) of 2013 Wisconsin Act 20. This reliance would become increasingly impractical and confusing over time. DATCP has begun to seek statutory changes separate from the rulemaking to clarify this authority.
Additionally, if DATCP does not implement the numerous technical updates reflected in the proposed rule, 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 federal EPA changes adopted in 2015. Finally, since DSPS no longer uses the portions of its rules that affect the tank-related programs, DSPS could theoretically eliminate those provisions from its rules, thus effectively leaving no rules in place beyond those that have already transferred in SPS 310 as the current, gap-ridden ATCP 93.
Links to Admin. Code and Statutes in this Register are to current versions, which may not be the version that was referred to in the original published document.