Chapter WEM 1 establishes a March 1 deadline to submit annual fee payments to WEM and EPRCA sets the deadline for filing a one-time fee. Recently, a facility took the position that its submission of the fees was timely because it put the fee, along with the required report, in the mail on or before the submission deadline. The rule intended that the fee and report would be in the hands of WEM on or before the deadline. The proposed rule would make clear when fees and reports are deemed submitted. c. Amount of notification and inventory fees.
Section 323.60, Stats., requires facilities that store hazardous chemicals at or above legal threshold quantities to report to the state the types and quantities of chemicals stored and to engage in planning activities. The statute also requires facilities to pay emergency planning notification fees and fees based on the number and quantities of the chemicals in their inventory. WEM collects the fees, which are then used to support the implementation of the EPCRA program at the state level and to fund grants to counties to assist with their required planning as authorized by s. 323.61, Stats. The current amounts of the emergency planning notification and inventory form fees are listed in Chapter WEM 1. They were established in 2010. Inflation since 2010 has reached nearly 30% according to the US Bureau of Labor Statistics. Projections based on historic expenses for completing the statutorily-required tasks in s. 323.60(2) shows the fees collected are insufficient to continue funding the statewide program and grants to counties beyond the state fiscal year 2024. The departmental tasks articulated in s. 323.60(2) are as follows:
Serve as the state emergency response commission under EPCRA.
Promulgate rules necessary for the implementation of EPCRA.
Promulgate rules establishing an amount not to exceed $6,000 that may be an eligible cost for computers in an emergency planning grant under s. 323.61 (2) (br).
Oversee the implementation of local emergency response plans by committees established by counties and assist the committees in executing their duties.
Administer the grant program established by s. 323.61, Stats.
At least annually, submit a report to the governor indicating whether each county has a committee and whether the composition of each committee conforms to EPCRA.
If the composition of a county's committee does not conform to 42 USC 11001 (c), inform the county board of that fact and of the county board's duty to create a committee as specified in EPCRA.The objective of the proposed rule change is to increase facility fees to account for inflation since 2010 and to set a mechanism to recalculate fees annually going forward so the state EPCRA program and grants to counties will be funded at sustainable levels and continue to meet the requirements of ss. 323.60 and 323.61, Stats. d. Remove references to repealed statutes and update terminology to reflect current applicable statutes
Section 166.20(1)(gm), Stats., was repealed and some of the language was incorporated into s. 323.60(7)(dm), Stats. The proposed rule would replace the reference to s. 166.20(1)(gm), Stats., with the current definition of petroleum-related facilities that are exempt from certain fees as set forth in s. 323.60(7)(dm), Stats. 6. Summary of, and Comparison with, Existing or Proposed Federal Statutes and Regulations:
There are no existing or proposed federal regulations intended to address the activities of s. 323.60, Stats. 7. If Held, Summary of Comments Received During Preliminary Comment Period and at Public Hearing on the Statement of Scope:
No such hearing was held.
8. Comparison with Similar Rules in Adjacent States:
Illinois – Illinois requires facilities to use an online filing system for submitting information regarding hazardous chemicals required by EPRCA to be submitted. There are no statutes requiring fees for submitting reports. WEM, as noted, is statutorily required to impose fees.
Iowa – Iowa only accepts EPCRA-required information electronically. Iowa does not currently collect fees for the submittal of EPCRA-required information.
Michigan – Michigan requires facilities to use an online filing system for submission of EPCRA-required information. There are no fees for submitting reports.
Minnesota – Minnesota accepts EPCRA-required information electronically or in hard copy submissions using a Minnesota state-specific form. Minnesota charges fees based on the number of hazardous chemicals the facility has. Minnesota also charges facilities that have releases of chemicals. The fee is based on the amount of material released during the calendar year. Minnesota also charges an annual fee to facilities that store extremely hazardous substances.
9. Summary of Factual Data and Analytical Methodologies Used and How Any Related Findings Support the Regulatory Approach Chosen:
WEM Fiscal Services staff track the administrative budget for the EPCRA program each year. They create projections based on previous years’ actual expenditures. They have brought to the attention of WEM’s EPCRA staff and management that, with the current fee structure, it is unlikely WEM will receive the revenue needed to support the administration of the EPCRA program beyond 2024. They also determined that simply amending the rule to provide for a one-time increase that does not account for future inflation would create the need for additional rule changes approximately every four to five years.
10. Analysis and Supporting Documents Used to Determine the Effect on Small Business or in Preparation of an Economic Impact Report:
11. Effect on Small Business:
This rule will have little effect on small businesses as the number of businesses that have to comply with the rule is relatively small and businesses within that group with fewer than 10 employees are currently exempt from the rule. Additionally, about 94% of the facilities will only see an increase of between $60 and $145 per year due to the one-time 30% increase. WEM has submitted a statement to that effect and supporting analysis to the Small Business Regulatory Review Board for possible comment. Additional support is in the fiscal estimate and economic impact statement being submitted by WEM.
12. Agency Contact Person:
Meg Vergeront
General Counsel
608-242-3072
13. Place where comments are to be submitted and deadline for submission:
Written comments may be submitted at the public hearings or by mail or email to:
Department of Military Affairs
ATTN: Katie Sommers
2400 Wright Street
Madison, WI 53704
Comments may be submitted ahead of the public hearing on the proposed rule by mail or email until the deadline given in the upcoming notice of the hearing. The notice of public hearing and the deadline for submitting comments will also be published on WEM’s website: https://wem.wi.gov/epcra/. RULE TEXT
WEM 1.03 Emergency planning notification fee. Except as provided in s. WEM 1.06, an owner or operator shall timely submit a one-time fee of $1080 per facility with the one-time emergency planning notification required under s. 323.60 (5) (a), Stats. To be considered timely, the required documentation and fees must be received physically or electronically by the division by the deadline specified in 42 U.S.C. § 11002(5)(c). WEM 1.04 Hazardous chemical inventory reporting and inventory form fee.
(1)
An owner or operator of a facility required to timely submit an inventory form under s. 323.60 (5) (c), Stats., shall submit a Tier II inventory form, a site plan, inventory form fee statement and the appropriate inventory form fee annually. To be considered timely, the required documentation and fees must be received physically or electronically by the division on or before March 1.(2)
An owner or operator of a facility that has submitted an inventory form pursuant to s. 323.60 (5) (c), Stats., for the previous reporting period and which is no longer subject to the inventory form reporting requirements for the current reporting period shall return timely submit any inventory form fee statement received from the division stating why the facility is no longer subject to the inventory form reporting requirements. To be considered timely, the required document must be received physically or electronically by the division on or before March 1.…
(7)
Except as provided under s. WEM 1.07, the inventory form fee required under this section is:a.
For facilities submitting an inventory form listing one hazardous chemical subject to inventory form fee calculations and a maximum daily amount of less than 100,000 pounds, $205275. Facilities with an actual maximum daily amount of 100,000 pounds or more, $245330.b.
For facilities submitting an inventory form listing 2 to 10 hazardous chemicals subject to inventory form fee calculations and a cumulative actual maximum daily amount of less than 100,000 pounds, $405550. Facilities with an actual maximum daily amount of 100,000 pounds or more, $485655.c.
For facilities submitting an inventory form listing 11 to 100 hazardous chemicals subject to inventory form fee calculations and a cumulative actual maximum daily amount of less than 100,000 pounds, $610825. Facilities with a cumulative actual maximum daily amount of 100,000 pounds or more, $730990.d.
For facilities submitting an inventory form listing 101 to 200 hazardous chemicals subject to inventory form fee calculations and a cumulative actual maximum daily amount of less than 100,000 pounds, $7451,010. Facilities with a cumulative actual maximum daily amount of 100,000 pounds or more, $8901,210.e.
For facilities submitting an inventory form listing 201 to 300 hazardous chemicals subject to inventory form fee calculations and a cumulative actual maximum daily amount of less than 100,000 pounds, $8801,195. Facilities with a cumulative actual maximum daily amount of 100,000 pounds or more, $10551,430.f.
For facilities submitting an inventory form listing 301 to 400 hazardous chemicals subject to inventory form fee calculations and a cumulative actual maximum daily amount of less than 100,000 pounds, $10151,380. Facilities with a cumulative actual maximum daily amount of 100,000 pounds or more, $12151,650.g.
For facilities submitting an inventory form listing 401 to 500 hazardous chemicals subject to inventory form fee calculations and a cumulative actual maximum daily amount of less than 100,000 pounds, $11501,560. Facilities with a cumulative actual maximum daily amount of 100,000 pounds or more, $13751,870.h.
For facilities submitting an inventory form listing over 500 hazardous chemicals subject to inventory form fee calculations and a cumulative actual maximum daily amount of less than 100,000 pounds, $12851,745. Facilities with a cumulative actual maximum daily amount of 100,000 pounds or more, $15402,090.i.
For temporary construction facilities, $2735.j.
For batch plants, $2735.SECTION 2. WEM 1.04 (Note) is amended to read:
Note: Instructions for reporting and submitting fees can be found on the division’s website. Facilities that have submitted Tier II and Inventory Fee Statements in the previous year will receive preprinted forms in the mail annually on or around each January 1. These forms can also be obtained through the Wisconsin Emergency Management website at emergencymanagement@wisconsin.gov or call 608−242−3221. SECTION 3. WEM 1.07 is amended to read:
WEM 1.07 Exemptions, inventory form fee. A facility is not required to pay a fee under s. WEM 1.04 if any of the following apply: (1)
The facility meets the exemption criteria in s. 323.60 (7) (d), Stats.(2)
A facility is not required to pay a fee under s. WEM 1.04 (7) (a) to (h) if it is a temporary construction facility or a batch plant reporting under s. WEM 1.04 (3) or (4) unless the batch plant chooses to file under s. WEM 1.04 (1).(3)
The facility is a petroleum marketing facility pursuant to s. 166.20 (1) (gm), Stats.at which petroleum products are received by tank truck, tank trailer, or railroad tank car and stored for resale, and the fee is for gasoline or diesel fuel.SECTION 4. WEM 1.07(3) (Note) is repealed:
Note: Section 166.20 (1) (gm), Stats., was repealed by 2009 Wis. Act 42. By the same act, the language of the now repealed s. 166.20 (1) (gm), Stats., was incorporated into the renumbered and amended s. 323.60 (7) (dm), Stats. SECTION 5. WEM 1.07 (Note) is repealed:
Note: A copy of the inventory form fee statement, Tier Two form, planning notification fee statement, Temporary Construction Facility Emergency Response and Hazardous Chemical Report, Batch Plant Emergency Response and Hazardous Chemical Report, Fee Remittance form, and list of local emergency planning committees may be obtained by contacting the Wisconsin Division of Emergency Management, 2400 Wright Street, Room 212, P.O. Box 7865, Madison, Wisconsin 53707-7865, telephone 608-242-3221.
