Statement of Scope
Department of Agriculture, Trade and Consumer Protection
Relating to: | Flammable, Combustible and Hazardous Liquids (Permanent) |
1. Finding/nature of emergency (Emergency Rule only):
Not applicable
2. Detailed description of the objective of the rule:
The Department of Agriculture, Trade and Consumer Protection (department) plans to consider modifications to ch. ATCP 93. Chapter ATCP 93 incorporates industry standards by reference, and those standards frequently update due to recommended changes by experts in the industry. The department may consider updating the standards by reference in ch. ATCP 93. The standards in question are generally accepted by industry and are readily available in published form through the publishers or online. The publishing organizations are the American Concrete Institute; the American Petroleum Institute (API); ASTM International; Energy Institute; HIR Technical Services; Ken Wilcox Associates; NACE International; the National Fire Protection Association (NFPA); Petroleum Equipment Institute; the Society for Protective Coatings; Steel Tank Institute; Underwriters Laboratories, Inc.; and the United States Department of Energy. As required, the department would petition the Attorney General under Wis. Stat. s. 227.21 (2) for approval of any updated standards. Additionally, the department’s most recent review of its administrative rules, required by 2017 Wisconsin Act 108 and released March 31, 2021, indicated that ss. ATCP 93.110 (1), 93.020 (6) (b), 93.050 (1), 93.400 (1) (c) and (7) (b) 2. are in conflict with statute and may be beyond the scope of the department’s authority. The department may repeal or modify provisions of the proposed rule to address these statutory conflicts. Finally, the department may consider modifications to its forms in ch. ATCP 93. 3. Description of existing policies relevant to the rule, new policies proposed to be included in the rule, and an analysis of policy alternatives:
During the 1980s and early 1990s, Wisconsin’s tanks and petroleum inspection programs were housed within the Department of Industry, Labor, and Human Relations (DILHR). These programs first transferred to the Department of Commerce and then to the Department of Safety and Professional Services in 2011 before transferring to the department in 2013. Therefore, ch. ATCP 93 has previously been titled ILHR 10, COMM 10, and SPS 310. During this review, the department may consider updating its incorporation by reference standards in ch. ATCP 93 to comply with current industry standards. Incoporation by reference would avoid unnecessary repetition of technical standards and unnecessary expense for the state. If the department does not update these standards, the rule will be out of compliance with the most recent industry standards. The department may consider repealing or modifying ss. ATCP 93.110 (1), 93.020 (6) (b), 93.050 (1), 93.400 (1) (c) and (7) (b) 2. These rules, as identified in the department’s March 31, 2021 letter to the Joint Committee on the Review of Administrative Rules, are conflicting with statute. If the department does not update these identified rules, they will be out of compliance with statute. To quote: Section ATCP 93.110 (1) is reportable as conflicting with Wis. Stat. s. 168.25 (1) requiring that the department shall enforce this subchapter [storage of dangerous substances]. The rule provides for an agent to exercise jurisdiction over certain provisions of the rule without statutory authority to make that delegation. The rule also provides for a chief elected municipal officer to approve certain delegations of department jurisdiction without statutory authority. The department intends to undertake rulemaking to align the rule with statute. …
Sections ATCP 93.020 (6) (b), 93.050 (1), 93.400 (1) (c) and (7) (b) 2. regulate above ground storage tanks greater than 110 gallons and thus conflict with Wis. Stat. s. 168.22(3) (“This subchapter does not apply to storage tanks which are installed above ground level and which are less than 5,000 gallons in capacity.”). The department identified this rule in its March 29, 2019 report and has sought a statutory change to align the rule with the statute. Neither the department nor its agents have enforced ch. ATCP 93 for tanks less than 5,000 gallons since October 2019. The department plans to undertake rulemaking to align the rule with the statute. Finally, the department may consider rule changes to ch. ATCP 93 that will update the forms management process. 4. Detailed explanation of statutory authority for the rule (including the statutory citation and language):
15.04 (1) (i) through (m)
(i) Records and forms management program. Establish and maintain a records and forms management program.
(j) Records and forms officer. Appoint a records and forms officer, who shall be responsible for compliance by the department or independent agency with all records and forms management laws and rules and who may prevent any form from being put into use.
(k) Form numbering and filing system. Establish a numbering and filing system for forms.
(m) Notice on forms. See that each form used by the department or independent agency to seek information from municipalities, counties or the public contains on the first page of the form, or in the instructions for completing the form, a conspicuous notice of the authorization for the form, whether or not completing the form is voluntary, if it is not voluntary, the penalty for failure to respond and whether or not any personally identifiable information, as defined under s. 19.62 (5), requested in the form is likely to be used for purposes other than for which it is originally being collected. This paragraph does not apply to state tax forms. 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). (6) The department may not promulgate or enforce a rule that requires the owner or operator of a motor vehicle fueling facility to have a telephone or other means for contacting emergency services available to the public.
