Wis. Stat. s. 93.06 (1p) allows the department to charge a fee to cover its cost to provide inspection, diagnostic, analytical, or testing services if the service is requested and is related to an authorized department program and serves program objectives. Wis. Stat. s. 93.06 (1pm) allows the department to establish a schedule of fees for the performance or contract for performance of testing of petroleum products other than testing provided under ch. 168. Wis. Stat. ch. 168, subch. I, titled Petroleum Product Inspections, grants the department authority to promulgate rules related to product grade specifications and to administration and enforcement of the subchapter. Wis. Admin. Code ch. ATCP 93 implements Wis. Stat. ch. 168, subch. II, titled Storage of Dangerous Substances. Chapter ATCP 93 establishes the appeals process for a system shutdown, which applies to both storage systems and the fuels contained within them. Plain Language Analysis
Background
During the 1980s and early 1990s, Wisconsin’s tanks and petroleum inspection programs were housed within the Department of Industry, Labor, and Human Relations. These programs were transferred to the Department of Commerce (Commerce) in 1996. They were transferred from Commerce to the Department of Safety and Professional Services (DSPS) as part of the 2011-13 biennial budget (2011 Wisconsin Act 32). Chapter SPS 348 was previously titled chs. ILHR 48 and COMM 48 before becoming the current ch. ATCP 94. With the enactment of 2013 Wisconsin Act 20 (the biennial budget bill), the state of Wisconsin transferred the Petroleum and Other Liquid Fuel Products program, also known as the Petroleum Inspection Program, from DSPS to the department. 2013 Wisconsin Act 20 authorized the transfer of existing administrative rules with the approval of the Secretary of the Department of Administration. See Section 9138 (2) (fm) and (4) (f). The Legislature expected the department to update the rules as part of the transfer. DSPS approved a scope statement in January 2011, but the program transferred before action was taken. The department Board approved a joint scope statement for chs. ATCP 93 and ATCP 94 in September 2013, and the department initially considered changes to ch. ATCP 94. The department never formally presented any changes to its Board and never held a public hearing on any proposed changes. Work was completed on ch. ATCP 93, the storage tanks inspection program, with the rule’s promulgation in November 2019. Per Wis. Stat. s. 168.04 (4) (c), no gasoline-ethanol fuel blend rule could take effect sooner than July 1, 2019. Per 2019 Wisconsin Act 64, Wis. Stat. s. 168.105 permits nozzles to dispense differing blends. The department Board approved a new scope statement for this rule at its November 7, 2019 meeting. The department had advocated a new scope statement be created for two main reasons: first, the nature of the industry had changed since September 2013; second, the then current scope statement expired in February 2020, per Wis. Stat. s. 227.135 (5), and a reset of the calendar with a new scope statement best served a thorough review and discussion of the rule. During the ensuing rulemaking discussions, proposed amendments, and informal sharing of those revisions with industry stakeholders, the department staff discovered that so much in the industry had changed since 2019 that the 2019 scope statement might arguably be insufficient to encompass all the revisions that might be needed to address the respective needs and interests of those in the petroleum products industry, the consumers of those products, and the broader public.
Therefore, at the request of the department, its Board approved a new scope statement at its July 22, 2021 meeting.
Rule Content General
This rule does all of the following:
Updates standards incorporated by reference.
Creates definitions clarifying the meaning of important terms.
Updates petition for variance procedures and fee authority per transfer from DSPS.
Updates allowance for water in tanks to match national standards.
Creates new sections on E15 and E85.
Creates new sections on aviation fuel and racing fuel.
Clarifies record keeping and documentation.
Codifies the Reid Vapor Pressure waiver.
Makes other minor updates and changes including corrections to outdated provisions.Standards Incorporated by Reference
This rule updates the ASTM standards incorporated by reference in Wis. Admin. Code s. ATCP 94.200 to reference the most current standards. This rule directly adopts individual ASTM standards at the time of approval by the DATCP Board. In some cases, the new rule adopts phrasing and definitions directly from these and other national standards. Creation of Definitions
This rule creates and expands definitions of important terms used throughout the chapter. The current ch. ATCP 94 defines 12 terms; the new rule, if adopted, will define 36 terms. This rule adopts many definitions from NIST Handbook 130 and others used throughout industry. Wisconsin definitions will therefore more closely match those adopted and used nationally. Adoption of these definitions clarifies the rule and thereby makes it easier to understand. Petition for Variance and Fee Authority per Transfer from DSPS
This rule repeals now-outdated procedures and creates specific requirements for requesting a variance. This rule clarifies the fee requirement and authority to request a variance. This rule repeals outdated references to Wis. Admin. Code chs. SPS 302 and SPS 305, which set fees for a variety of DSPS services and established variance procedures for a variety of DSPS programs. The fees do not increase, but the fee authority now appears entirely in a department rule rather than in the department rule with a cross reference to a DSPS rule. The rule therefore is easier to understand and helps complete the transfer of the program to the department authority as required by 2013 Wisconsin Act 20. Water in Tanks
This rule updates limits for water in tanks of several fuel types to match the limits specified in Wis. Admin. Code s. ATCP 93.605 (1) (g), which the department promulgated in November 2019. Thus, the rule eliminates potential contradictions between the two administrative rules and requires no additional costs since the two standards match. E15 and E85
This rule defines E15 and E85 (Wis. Admin. Code s. ATCP 94.120 (14) and (15)), creates sections that address E15 specifications (Wis. Admin. Code s. ATCP 94.215) and E85 specifications (Wis. Admin. Code s. ATCP 94.270), and sets labeling and dispensing requirements (Wis. Admin. Code s. ATCP 94.300) that government and industry have long wanted. Aviation Fuel and Racing Fuel
In the current rule, the standards for aviation fuels are in Wis. Admin. Code s. ATCP 94.210 (2). In the new proposed rule, aviation fuel specifications are expanded and moved to a newly created section (Wis. Admin. Code s. ATCP 94.250). Also, due to numerous questions about racing fuels, a new section, Wis. Admin. Code s. ATCP 94.260, has been created in an effort to make the rule match the changing needs of industry. Record Keeping and Documentation
Records and documentation requirements have been clarified in two ways: one, by repealing and recreating Wis. Admin. Code s. ATCP 94.330, so the rule will concern only the department inspection records; two, by creating Wis. Admin. Code s. ATCP 94.340, which will concern records that must be kept by industry. Reid Vapor Pressure
The 1.0 PSI additional RVP allowance in finished fuels during the wintertime months (September 16 – May 31) will permit refineries to produce a consistent base fuel for higher ethanol finished fuel blends.
Other Changes
The proposed rule makes other minor clarifying and corrective changes, as well as typical stylistic changes that occur during rulemaking.
Since the department Board approved a joint scope statement for chs. ATCP 93 and ATCP 94 in September 2013, there has been an expectation that the two rules will be in harmony. The department promulgated the current ch. ATCP 93 in November 2019. The new ch. ATCP 94 harmonizes with changes previously adopted in ch. ATCP 93 so that the two will not conflict. The rule also makes changes based on new state or federal laws and guidelines. For instance, 2019 Wisconsin Act 64 created Wis. Stat. s. 168.105 to permit nozzles to dispense differing blends, and that statute required the creation of Wis. Admin. Code s. ATCP 94.300 (1) (c) 2. The rule change also attempts to anticipate emerging technologies.
Summary of and Comparison with Existing or Proposed Federal Statutes and Regulations
The federal Clean Air Act (CAA) authorizes the Environmental Protection Agency (EPA) to establish emissions standards for motor vehicles to address air pollution that may reasonably be anticipated to endanger public health or welfare. EPA also has authority to establish fuel controls to address such air pollution. 40 CFR Parts 79, 80, 85, and 86 establish fuel quality and emissions standards by rule, which are enforced by EPA. These rules incorporate by indirect reference ASTM International standards and test methods. To reduce the risk of ozone-related health problems, EPA regulates the vapor pressure of gasoline sold at retail stations during the summer ozone season to reduce evaporative emissions from gasoline that contribute to ground-level ozone, which might contribute to ozone-related health problems.
42 U.S.C. s. 7545 regulates fuels and allows for a temporary waiver of a control or prohibition respecting the use of a fuel or fuel additive. By this authority, EPA may grant partial waivers allowing for gasoline- ethanol blends greater than 10 percent up to 15 percent (E15) for use in model year 2001 and newer light- duty vehicles. 40 CFR Part 80 establishes E15 labeling and survey requirements, and transfer document requirements for gasoline-oxygenate blends. Summary of Comments Received during Preliminary Comment Period and at Public Hearing on Statement of Scope
During the June 10, 2021 hearing on the statement of scope, only Preston Searles from the American Petroleum Institute testified. His stated concerns pertained to the rule itself rather than the scope statement. Therefore, his comments were considered in the drafting of the hearing rule but did not result in any changes to the scope statement.
The department held three public hearings on the draft rule in February 2022: in Madison on February 8, in Appleton on February 15, and a cyber hearing on February 22 from Madison. After the final hearing, the department held the written comment period open for three weeks until March 15, 2022.
Comparison with Rules in Adjacent States
