Fiscal Estimate
Summary
The rules require a registration credential for various building contactors who are involved in the construction or modification of public buildings and places of employment and one- and 2-family dwellings, unless the contractor already holds another type of contractor credential issued by the department. The type of contracting businesses required to be registered under the rules include commercial general construction, drywall, plastering, electrical wiring, finish carpentry, flooring, framing carpentry, glass and glazing, insulation, masonry and stone work, plumbing, concrete work, roofing, siding, building site preparation and/or stabilization, structural steel, tile and terrazzo, wall coverings, and other building or equipment specialties.
The department estimates that there would be 30,000 contracting businesses that would be required to obtain registrations. The department proposes to charge $100 for a 4-year, building contractor registration. There is also a $15 initial application fee that would be waived if the applicant applies and pays for the registration via the internet. The department estimates that it would realize approximately $806,250 in revenue annually.
The department anticipates that the workload associated with this registration can be managed with information technology usage and within current staff levels associated with the administration of the commercial building code program and the one- and 2- family dwelling code program.
State fiscal effect
Increase in existing revenues.
Increase costs - may be possible to absorb within agency's budget.
Local government fiscal effect
None.
Fund sources affected
PRO.
Long-range fiscal implications
None are anticipated.
Agency Contact
Robert DuPont, Bureau Director
Phone: (608) 266-8984
Finding of Emergency
The Department of Commerce finds that an emergency exists within the state of Wisconsin and that adoption of an emergency rule is necessary for the immediate preservation of the public health, safety and welfare. A statement of the facts constituting the emergency is as follows.
1.
Under Chapter
560 of the Statutes, the department of commerce is charged with facilitating the establishment and retention of business enterprises in Wisconsin, and with seeking closer cooperation and coordination between units of state government, so that the economy of the state may continue to develop fully and meet citizen and community needs.
2.
Under Chapters
101 and
145 of the statutes, the department of commerce has oversight over the design, construction, alteration and maintenance of public buildings and places of employment, one- and two- family dwellings, public swimming pools and public water attractions in order to protect public safety, health and welfare and the waters of the state.
3. The department has proposed an administrative rule that would require the registration of various types of building contractors not already credentialed by the department under existing administrative rules. Under the proposed rules contractors must be registered with the department by January 1, 2010. A public hearing on that proposal was held on January 21, 2009.
4. The proposed rule has three main benefits to Wisconsin: first, it will enhance the department's ability to communicate with and educate building contractors throughout the state about their obligations to limit safety and health risks for the citizens of Wisconsin; second, it will enhance the ability of the department to cooperate and coordinate with the Department of Workforce Development relative to their administration of unemployment insurance and workers compensation insurance programs; and third, it will enhance the ability of the department to cooperate and coordinate with the Department of Revenue relative to their administration of the state income tax program.
5. Due to the current economic circumstances, the department has determined that the implementation for building contractor registration should be July 1, 2009 in order for the benefits to be in effect for the 2009 building construction season.
Pursuant to section
227.24, Stats., this rule is adopted as an emergency rule to take effect upon publication in the official state newspaper, except for ss.
Comm 5.30 (1) and
Comm 61.295 (2) which shall take effect on July 1, 2009.
Notice of Hearing
Commerce
Fee Schedule, Ch.
Comm 2
Flammable, Combustible and Hazardous Liquids,
Ch.
Comm 10
NOTICE IS HEREBY GIVEN that pursuant to section
101.09 (3) of the Statutes, the Department of Commerce will hold a public hearing on proposed rules in Chapters
Comm 2 and
10, relating to flammable, combustible and hazardous liquids, and affecting small businesses.
Hearing Information
The public hearing will be held as follows:
Date and Time:
|
Location:
|
March 31, 2009
Tuesday
9:00 a.m.
|
Thompson Commerce Center
Third Floor, Room 3B
201 West Washington Avenue
Madison, Wisconsin
|
The hearing will be held in an accessible facility. If you have special needs or circumstances that may make communication or accessibility difficult at the hearing, please call Sam Rockweiler at (608) 266-0797 or at Contact Through Relay at least 10 days prior to the hearing date. Accommodations such as interpreters, English translators, or materials in audio tape format will, to the fullest extent possible, be made available upon a request from a person with a disability.
Appearances at Hearing and Submission of Written Comments
Interested persons are invited to appear at the hearing and present comments on the proposed rules. Persons making oral presentations are requested to submit their comments in writing, via e-mail. Persons submitting comments will not receive individual responses. The hearing record on this rulemaking will remain open until April 2, 2009, to permit submittal of written comments from persons who are unable to attend the hearing or who wish to supplement testimony offered at the hearing. E-mail comments should be sent to
sam.rockweiler@wi.us. If e-mail submittal is not possible, written comments may be submitted to Sam Rockweiler, Department of Commerce, Division of Environmental and Regulatory Services, P.O. Box 14427, Madison, WI 53708-0427.
Copies of Proposed Rules
The proposed rules and an analysis of the rules are available on the Internet by entering “Comm 10" in the search engine at the following Web site:
http://adminrules. wisconsin.gov. Paper copies may be obtained without cost from Sam Rockweiler at the Department of Commerce, Division of Environmental and Regulatory Services, P.O. Box 14427, Madison, WI 53707, or at
sam.rockweiler@wi.us, or at telephone (608) 266-0797, or at Contact Through Relay. Copies will also be available at the public hearing.
Analysis Prepared by Department of Commerce
Statutes interpreted
Statutory authority
Explanation of agency authority
Under the statutes listed above, the Department has a responsibility to adopt and administer rules for safe storage, handling and use of flammable, combustible and hazardous liquids. The rules in this order encompass fire safety, life safety and environmental safety aspects for flammable, combustible and hazardous liquids. The Department also has authority under section
227.11 (2) (a) of the Statutes to promulgate rules interpreting any statute that is enforced or administered by the Department, if the rule is considered necessary to effectuate the purpose of the statute.
Related statute or rule
The rules in this order are related to rules in chapter Comm 14, which addresses fire prevention; chapter Comm 47, which addresses Petroleum Environmental Cleanup Fund Awards; and chapter Comm 48, which addresses grade specifications and inspection criteria for petroleum products.
Plain language analysis
The rules in this order are primarily intended to implement the operator-training criteria issued by the United States Environmental Protection Agency (EPA) in response to the federal Energy Policy Act of 2005. These criteria apply to all underground storage tank systems (USTs) that are federally regulated under Part 280 of Title 40 of the
Code of Federal Regulations. These tank systems coincide with the underground storage tank systems that are required by section
Comm 10.145 to have a permit to operate from the Department.
The proposed rules also include several miscellaneous changes in chapters Comm 2 and 10 that are needed primarily for clarification purposes as a follow-up to repealing and recreating chapter Comm 10 in 2008. These changes include (1) adopting an updated version of a standard for repair of shop-fabricated aboveground tanks; (2) clarifying that overfill-protection requirements apply to existing (not just new) aboveground storage tanks having both a fill point outside a diked area and either a tight-connect delivery or latch-open filling; (3) extending secondary-containment requirements to apply to new safe-suction systems and new tank-manifold piping, to be consistent with overriding EPA regulations; (4) clarifying that inventory-verification requirements apply only to retail tank systems, and that they apply there regardless of the capability of an automatic tank gauge; (5) extending underground storage tank tightness testing to tanks that are inspected internally because of having a failing sacrificial anode system, tanks that have periodic internal inspections because of being previously lined, and tanks that have a lining which is being repaired; (6) requiring installation of an access way from the tank interior to finished grade (if not already provided) when lining a tank or inspecting a lined tank, so that an inspector can readily enter the tank during subsequent inspections; and (7) making underground storage tank systems comply with the aboveground storage tank system requirements for double-poppet emergency shut-off valves at dispensers, and for monthly monitoring of the water level in the tank.
In addition to clarifying the application of inventory-verification requirements to retail facilities, the Department invites recommendations on whether to apply these or similar inventory-verification requirements to non-retail facilities that have underground tanks or underground pressurized piping, such as bulk plants and fleet operations.
Comparison with federal regulations
The operator-training requirements in Section 9010(a) of the federal Solid Waste Disposal Act that was enacted as part of the 2005 Energy Policy Act, and the EPA criteria issued in conjunction with Section 9010(a), establish three classes of operators for federally regulated underground storage tank systems – i.e., Class A operators have primary responsibility for on-site operation and maintenance of the systems, Class B operators have daily on-site responsibility for the operation and maintenance of the systems, and Class C operators have daily on-site responsibility for addressing emergencies presented by spills or releases from the systems. The EPA criteria, as published in EPA-510-R-07-005, further specify (1) which facilities are subject to the training criteria, (2) who is subject to the training criteria, (3) minimum components of the training programs for each class of operator, (4) a 3-year timeframe for completing the training of all the operators, (5) establishment of a state-level system for ensuring all operators are trained in accordance with the criteria, (6) methods for states to demonstrate compliance with the criteria, and (7) methods the EPA will use to enforce state-level compliance with the criteria.
The operator-training rules in this proposed order consist of no more than – and no less than – the EPA criteria, with the following exceptions:
A. Wherever the EPA criteria refer to a “release," other than for reporting, the text is clarified to also refer to leaks. This clarification is consistent with the text in chapter Comm 10 that recognizes and distinguishes between these two circumstances. Consequently, for example, the proposed rules would (1) require a Class B operator to receive training in operation and maintenance requirements that address leak detection – not just release detection, and (2) require a Class C operator to be trained to take action in response to an alarm caused by a leak – not just an alarm caused by a release. The EPA references to reporting of releases are not expanded to include reporting of leaks, except where a Class C operator reports to a Class B operator, because chapter Comm 10 does not require reporting leaks. However, the references to reporting of releases are clarified to include both suspected and obvious releases, to be consistent with the text in chapter Comm 10 that recognizes and distinguish between these two types of releases.
B. For a facility at which the owner and operator are separate persons, additional text makes them equally responsible for ensuring that the Class A, Class B and Class C operators are designated.
C.
The responsibilities for the Class B operator, in section
Comm 10.830 (2) (e), are expanded to include providing the Class C operator with specified, written instructions for fulfilling the Class C responsibilities; and those Class C responsibilities are described in greater detail in the specified instructions than in the EPA criteria. Similarly, additional text in section
Comm 10.830 (2) (f) clarifies that the Class B operator is responsible for ensuring that the Class C operator is present during all operating hours of typical tank systems for fueling facilities; and the circumstances where that presence is not required are specified. Further, section
Comm 10.842 (2) clarifies that the Class C operator must be trained to understand the required written instructions.
D.
In the prescribed acceptable training, in section
Comm 10.850 (2) (b), additional text clarifies that the training for a Class C operator must be provided by, or authorized by, an accredited Class A or Class B operator
for the facility where the Class C operator is employed. Consequently, a Class C operator could move from one facility to another that is operated by the same Class A or Class B operator – but would need new training and accreditation to be a Class C operator at another facility that is operated by a different Class A or Class B operator.
E.
In the retraining requirements, in section
Comm 10.880, a definition is included for “significant compliance," which applies beyond EPA's referenced guidance for release prevention and release detection. This definition is intended to foster consistency in enforcement, and is essentially copied from the definition of “substantial compliance" in the Wisconsin Fire Protection Code, chapter Comm 14, where it has been helpful for the past several years in auditing local fire departments.
The proposed rules include selection of the following options that are allowed in the EPA criteria:
A.
For the deadline for having a Class A, Class B and Class C operator, in section
Comm 10.820, a phase-in schedule is established that (1) applies EPA's August 8, 2012, deadline only to small businesses; and (2) applies an earlier, January 1, 2012, deadline to all other facilities. This phase-in would be consistent with the requirements in section
227.22 (2) (e) of the Statutes for allowing small businesses extra time to comply with new rules that have a significant economic impact, and could be helpful not only to small businesses but also to the Department and its regulatory and training partners in implementing this portion of the training program.
B.
In section
Comm 10.841 (2) (a), an option is included for any Class B operator to have site-specific training that is focused only on equipment used at the operator's facility.
C.
Section
Comm 10.850 (2) (a) 1. specifies a Wisconsin-based International Code Council
® training and certification process for Class A and Class B operators, as the base-level process. Discussions with ICC staff indicate several advantages of using this approach – particularly in combination with the equivalent, alternate training programs that are permitted for Class A and Class B operators in section
Comm 10.850 (2) (a) 2. The ICC process could include evaluation and certification of individuals who skip the training because they already have adequate knowledge about operating underground storage tank systems.
D.
Section
Comm 10.850 (4) includes, for Class A and Class B operators, reciprocity acceptance of training verification from other states that have equivalent training programs.
E.
The recordkeeping requirements in section
Comm 10.870 include keeping documentation of compliance only at each facility or at another, readily available site – rather than reporting that compliance to the Department or authorized agent.
The proposed rules do not include an EPA-referenced option of requiring renewal of the training.
Comparison with rules in adjacent states
Michigan:
Michigan is currently updating their 1998 rules for their UST program. They are working with stakeholders on the rules package and plan to have new rules promulgated within the next year. Included in the code update is the mandate for operator training, which will mostly mirror the EPA requirements. They are planning to require ICC certification and to require renewals every 2 years, and plan to limit the number of facilities that a Class B operator can oversee to 45. For facilities that are routinely attended, at least one Class C operator is expected to be present during all operating hours – and at unmanned facilities, fuel delivery personnel are expected to fulfill the Class C operator responsibilities, for the purpose of fuel deliveries. The draft rules include substantially greater detail than the EPA criteria, for the training that Class C operators must receive.
Minnesota:
Minnesota has developed a UST rule-revision draft that includes operator-training requirements and has sent it to their Revisor's Office for review, after which it will be released for public comment for 30 days. They expect to meet the August 8, 2009, EPA deadline for having the revised rule in place.
Some key points that Minnesota has included in their revised rule are as follows:
1. Training for operators will not always be mandatory. The operator will have the choice of taking only a test. If the operator fails the test, training by a State-approved trainer will be mandatory.
2. Trainers must be approved by the State in order to provide operator training.
3. Only Class A and Class B operators must pass a test.
4. Class B operators must be employees of the company that owns the facility. Class B operators will also be tested on site-specific equipment and functions. (No third-party contractors are permitted.)
5. An outside party likely will create an on-line testing platform.
6. The operator training is expected to be phased in over a 3-year period, with sequential deadlines that are based on telephone area codes.
7. For facilities that are routinely attended, at least one Class C operator is expected to be present during all operating hours – and at unmanned facilities, a sign must be posted showing the emergency shut-off procedures and the name, address and telephone number of the owner, operator or local emergency response personnel.
8. If a facility is found to have a significant-operational- compliance violation at the time of a State inspection, the Class B operator will be required to take training and pass another test.
Minnesota has begun meeting with a group of stakeholders that includes a wide spectrum of tank owners, to help develop the test questions for the operators.
Iowa:
Iowa has begun their rulemaking process for the operator-training requirements and has held internal meetings for developing draft rules. A stakeholder meeting was held in February to discuss options and get input.
Illinois:
Illinois is in the preliminary stages of rulemaking, and has not yet developed draft rules. The State Fire Marshall's office has contacted Wisconsin to survey our experiences with stakeholder meetings and to obtain a copy of our proposed rules.
Summary of factual data and analytical methodologies
The information from which the proposed operator-training rules were developed consisted of (1) the EPA criteria published in EPA-510-R-07-005, (2) existing and proposed rules from about 15 other states, and (3) personal contacts with staff from the International Code Council and with private-sector trainers for operators of underground storage tank systems.
The proposed miscellaneous changes to chapter Comm 10 were developed primarily from six regional training sessions the Department conducted statewide in January and February of 2009 in conjunction with implementing a comprehensive update of chapter Comm 10 that became effective on February 1, 2009.
