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
Background
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.
Rule Content
General
The proposed rule repeals and recreates ATCP 93, thereby updating an administrative rule that has not been significantly updated since 2008.2 The content of the rule reflects input from various sources, including: Recommendations made by the Department of Safety and Professional Services prior to the program’s relocation to DATCP; feedback provided by stakeholders and businesses regulated under ATCP 93; and agency concerns about the responsibilities of Class A, B, and C operators.
2Although no substantive changes to the rule have been made since the 2008 update, DATCP has periodically effected numerous minor revisions to rule language pertaining to forms and hyperlinks over the years.
The substance of the changes to ATCP 93 fall into six broad categories:
- Harmonizing the rule with current federal standards, especially those set out by the Environmental Protection Agency;
- Addressing the necessary changes arising from the inter-departmental transfer of the storage tank program from DSPS to DATCP;
- Updating technical standards incorporated by reference;
- Eliminating provisions that are no longer in effect as well as unnecessary explanatory notes;
- Modifying outdated terminology; and
- Clarifying ambiguous language.
Additional changes include the correction of typographical errors, form number changes, name changes to certain documents, and changed information concerning the availability of documents (hyperlinks or through Document Sales).
DSPS Recommendations
DSPS recommended 232 changes of varying nature in the working draft of the rule that was sent to DATCP during the program transfer. Some of the suggested changes were substantive (compliance with new recommendations), and some were more cosmetic (elimination of unnecessary words). Occasionally, a DSPS recommendation may have been modified slightly. For instance, the new rule alters a DSPS recommendation on water levels in ATCP 93.605.
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 the deletion of the words, “the requirements in,” wherever they appear throughout the rule. Other word changes were accepted 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 recommended the creation of ATCP 93.335, dealing with the manufacture of organic coatings, and the repeal of ATCP 93.020 (6) (d) 3. to coincide with the change.
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 ATCP 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.
Other DSPS recommendations adopted by DATCP relate to:
- Water level in tanks - ATCP 93.605 (1) (g).
- Irrigation operations - ATCP 93.630 (2) (d).
- Biodiesel blends - ATCP 93.680 (5) to (7).
- Financial responsibility - Subchapter VII.
Changes Dictated by New EPA Standards
Two notes in Wis. Admin. Code § ATCP 93.180 required revision to reflect new requirements and new penalties imposed by the Federal government. EPA released new standards for airport fueling in 2015. For that reason, 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 the 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 issued new guidelines on installation of underground piping that is now reflected in ATCP 93.500 (6).
EPA also released new standards for statistical inventory reconciliation 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
In ATCP 93.010, DATCP removed notes that simply quoted existing statute and were therefore not necessary.
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.
