The Department is proposing rules establishing the DHS enforcement standard recommendations as ch.
NR 140, Wis. Adm. Code, state groundwater quality enforcement standards. The Department is also proposing rules establishing ch.
NR 140, Wis. Adm. Code, state groundwater quality preventive action limits in accordance with s.
160.15 (1), Stats.
Analysis and supporting documentation used to determine effect on small businesses
In its determination of the effect of this proposed rule on small businesses, the Department used analysis and supporting documentation that included information from the U.S. Department of Agriculture—National Agricultural Statistics Service (NASS), the University of Wisconsin (UW)—Department of Agronomy and the Wisconsin Department of Agriculture Trade and Consumer Protection (DATCP). Information used from the United States Department of Agriculture NASS included agricultural chemical usage reports from 2001-2007, and the NASS Agricultural Chemical Use Database. Information used from the UW Department of Agronomy included the UW Extension 2008 Herbicide price list and the UW Extension Corn and Soybean Herbicide Chart. Information from DATCP included data from DATCP's Agricultural Chemicals in Wisconsin Groundwater - Final Report March 2008 document and results from the agency's groundwater monitoring and pesticide registration databases.
Small Business Impact
The Department has determined that this rule order will not have a significant economic impact on small businesses. Chapter
NR 140, Wis. Adm. Code, currently contains groundwater standards for 123 substances of public health concern, 8 substances of public welfare concern and 15 indicator parameters. The proposed groundwater standard revisions would apply to all regulated facilities, practices and activities which may impact groundwater quality.
The enforcement of Wisconsin state groundwater quality standards is done by state regulatory agencies through their groundwater protection programs. State regulatory agencies, in exercising their statutory powers and duties, establish groundwater protection regulations that assure that regulated facilities and activities will not cause state groundwater quality standards to be exceeded. A state regulatory agency may establish specific design and management criteria to ensure that regulated facilities and activities will not cause the concentration of a substance in groundwater, affected by the facilities or activities, to exceed state groundwater quality enforcement standards or preventive action limits at an applicable “point of standards application" location.
Regulated facilities, practices and activities, which are sources of the substances for which new and revised groundwater standards are proposed are, for the most part, likely sources of substances for which groundwater standards already exist. Consequently, there will likely be few cases where the proposed standards will be exceeded where existing standards are not currently being exceeded. Additional monitoring costs may be imposed upon regulated facilities, practices and activities, but the extent of such monitoring and any costs associated with it, while too speculative to quantify at this time, are not expected to be significant.
The proposed revisions to state groundwater quality standards include new and revised standards for some pesticides and pesticide degradation products found in Wisconsin groundwater. New proposed groundwater quality standards include standards for the insecticide chlorpyrifos, the herbicides acetochlor, dimethenamid and propazine, and the herbicide degradation products acetochlor ethane sulfonic acid and oxanilic acid, and metolachlor ethane sulfonic acid and oxanilic acid.
The insecticide active ingredient chlorpyrifos is used in corn to control rootworm, and in soybeans to control aphids and spider mites. There are currently 32 insecticide products registered in Wisconsin that contain the active ingredient chlorpyrifos. Chlorpyrifos has been reported as detected in groundwater at 2% of DATCP Agricultural Chemical Cleanup Program sites. In a DATCP 2007 statewide survey of agricultural chemicals in Wisconsin groundwater, no chlorpyrifos was reported detected in 398 private water supply wells sampled.
Acetochlor and dimethenamid/dimethenamid-P are herbicides that have been used in Wisconsin to control weeds in corn and soybeans. There are currently 46 herbicide products registered in Wisconsin that contain the active ingredient acetochlor or dimethenamid/dimethenamid-P. Acetochlor has been reported as detected in groundwater at 25% of DATCP Agricultural Chemical Cleanup Program sites and dimethenamid/dimethenamid-P has been reported as detected at 27% of those sites. In DATCP's 2007 statewide survey of agricultural chemicals in Wisconsin groundwater, no “parent" acetochlor or dimethenamid/dimethenamid-P were reported as detected in 398 private water supply wells sampled. Metabolite degradation products of these herbicides were, however, detected in some of the sampled wells.
Propazine is a herbicide used for weed control on sorghum, umbelliferous crops (carrots, parsley etc.) and greenhouse ornamentals. It is also a contaminant of the herbicide atrazine, which is used in Wisconsin on corn. There are currently no herbicide products registered in Wisconsin that contain the active ingredient propazine. Propazine has been reported as detected in groundwater at 22% of DATCP Agricultural Chemical Cleanup Program sites.
The acetochlor ethane sulfonic acid and oxanilic acid (acetochlor ESA & OXA) degradation products of acetochlor have been found in Wisconsin groundwater. In DATCP's 2007 statewide survey of agricultural chemicals in Wisconsin groundwater, acetochlor ESA & OXA were reported as detected in 16 private water supply wells and 3 private water supply wells respectively, of 398 wells sampled. The highest levels of acetochlor ESA & OXA reported in the DATCP study were 2.32 ppb and 4.36 ppb respectively. The highest levels reported in the DATCP groundwater monitoring database for private water supply wells are 9.52 ppb for acetochlor-ESA and 4.36 ppb for acetochlor-OXA.
In the DATCP's 2007 statewide survey of agricultural chemicals in Wisconsin groundwater, metolachlor ESA & OXA were reported as detected in 106 private water supply wells and 18 private water supply wells respectively, of 398 wells sampled. The highest levels of metolachlor ESA & OXA reported in the DATCP study were 6.54 ppb and 1.37 ppb respectively. The highest levels reported in the DATCP groundwater monitoring database for private water supply wells are 31.2 ppb for metolachlor-ESA and 22.8 ppb for metolachlor-OXA.
As it appears that the occurrence of the pesticides chlorpyrifos, acetochlor, dimethenamid/dimethenamid-P and propazine in Wisconsin groundwater is limited to DATCP Agricultural Chemical Cleanup Program sites, and as the pesticide metabolite degradation products acetochlor ESA & OXA and metolachlor ESA & OXA have been detected statewide at levels relatively low compared to proposed state groundwater quality standards for those substances, and as comparably priced alternative herbicide products appear to be available to state farmers, the Department has determined that any management practice restrictions placed on the pesticides chlorpyrifos, acetochlor, dimethenamid/dimethenamid-P and propazine to limit their impact on Wisconsin groundwater, or on acetochlor or metolachlor to limit the impact of their ESA or OXA metabolite degradation products on groundwater, are unlikely to have a significant economic impact on corn or soybean growers in Wisconsin.
Small business regulatory coordinator
Environmental Analysis
The Department has made a preliminary determination that this action does not involve significant adverse environmental effects and does not need an environmental analysis under ch.
NR 150, Wis. Adm. Code. However, based on the comments received, the Department may prepare an environmental analysis before proceeding with the proposal. This environmental review document would summarize the Department's consideration of the impacts of the proposal and reasonable alternatives.
Fiscal Estimate
Summary
Although additional monitoring costs may be imposed upon the state or local government entities that are within the regulated community, the extent of such monitoring and any costs associated with it — while too speculative to quantify at this time — are not expected to be significant. Further, any increased monitoring costs associated with the setting of an ES and PAL for new substances and the lowering of the existing ES and PAL for other substances may be offset by cost savings associated with the relaxing of ESs and PALs for other compounds. Thus, on balance, the Department believes it is unlikely that there will be additional costs to state and local governments resulting from adopting these groundwater standards
State fiscal effect
None.
Local government costs
None.
Agency Contact Person
Mike Lemcke, Chief, Groundwater Management Section, Wisconsin Department of Natural Resources, Bureau of Drinking Water & Groundwater, 101 S. Webster Street, Madison, WI 53707-7921; (608) 266-2104;
Michael.Lemcke@wisconsin.gov.
Notice of Hearings
Revenue
NOTICE IS HEREBY GIVEN That pursuant to ss.
71.80 (9m) (c),
77.61 (19) (c), and
227.24, Stats., the Department of Revenue will hold public hearings to consider emergency rules and the creation of permanent rules revising Chapters
Tax 2 and
11, relating to penalties for failure to produce records.
Hearing Information
The hearings will be held:
December 10, 2009 at 1:30 p.m.
Events Room
State Revenue Building
2135 Rimrock Road
Madison, Wisconsin
December 21, 2009 at 9:00 a.m.
Events Room
State Revenue Building
2135 Rimrock Road
Madison, Wisconsin
Handicap access is available at the hearing location.
Submission of Written Comments
Interested persons are invited to appear at the hearings and may make an oral presentation. It is requested that written comments reflecting the oral presentation be given to the department at the hearings. Written comments may also be submitted to the contact person shown below no later than December 21, 2009. Written comments will be given the same consideration as testimony presented at the hearings.
Dale Kleven
Department of Revenue
Mail Stop 6-40
2135 Rimrock Road
P.O. Box 8933
Madison, WI 53708-8933
Analysis Prepared by the Department of Revenue
Statutes interpreted
Statutory authority
Explanation of agency authority
Sections
71.80 (9m) (c) and
77.61 (19) (c), Stats., provide that the Department shall promulgate rules to administer the penalties for failure to produce records.
Related statute or rule
There are no other applicable statutes or rules.
Plain language analysis
This proposed rule does the following:
•
Reflects changes in Wisconsin's tax laws due to the adoption of penalties for failure to produce records.
•
Provides guidance to Department employees and taxpayers so that the penalties can be administered in a fair and consistent manner. This includes providing a standard response time, a standard for noncompliance, and penalty waiver provisions.
Comparison with federal regulations
There is no existing or proposed federal regulation that is intended to address the activities to be regulated by the rule.
Comparison with rules in adjacent states
The department is not aware of a similar rule in an adjacent state.
Summary of factual data and analytical methodologies
2009 Wisconsin Act 28 adopted statutory changes creating penalties for failure to produce records. Within these provisions are requirements that the Department promulgate rules to administer these penalties. The department has created this rule to reflect these changes in Wisconsin's tax laws and comply with statutory requirements.
Analysis and supporting documents used to determine effect on small business
As explained above, this emergency rule is created to reflect changes in Wisconsin's tax laws and comply with statutory requirements. As the rule itself does not impose any significant financial or other compliance burden, the department has determined that it does not have a significant effect on small business.
Anticipated costs incurred by private sector
This proposed rule does not have a significant fiscal effect on the private sector.
Small Business Impact
This proposed rule does not have a significant effect on small business.
Fiscal Estimate
Summary
The fiscal effect of these changes (a minimal increase in state revenues) was included in the fiscal estimates of
2009 Wisconsin Act 28. Consequently, this proposed rule has no fiscal effect.
State fiscal effect
None.
Local government costs
None.
Text of Proposed Rule
SECTION 1. Tax 2.85 is created to read:
Tax 2.85 Penalty for failure to produce records under s. 71.80(9m), Stats. (1) GENERAL. A person who fails to produce records or documents, as provided under ss.
71.74 (2) and
73.03 (9), Stats., that were requested by the department may be subject to the following penalties:
(a)
The disallowance of deductions, credits, exemptions or income inclusion to which the requested records relate.
(b)
In addition to any other penalties that the department may impose, a penalty for each violation under s.
71.80 (9m), Stats., that is equal to the greater of $500 or 25% of the amount of the additional tax on any adjustment made by the department that results from the person's failure to produce the records.
(2)
DEFINITIONS. In this section:
(a)
“Disallowance," “inclusion," or “adjustment" include action taken by the department when a proposed assessment or refund or notice of assessment or refund is issued to a taxpayer.
(b)
“Records" or “documents" include both paper and electronic formats. Examples include, but are not limited to, bills, receipts, invoices, contracts, letters, memos, accounting statements or schedules, general ledgers, journal entries, and board of director's minutes.
(c)
“Records requested were not provided" means that all records requested were not provided to the department within the time specified by the department.
(d)
“Written request for records" includes requests made by letter, e-mail, fax or any other written form.
(3)
PROCEDURES. The penalties in this section may be imposed if the records requested were not provided and the department provided the following notifications regarding the records requested:
(a)
A first written request for records where the department allowed the person a minimum of 15 days for the records to be provided.
(b)
A second written request for records where the department allowed the person a minimum of 30 days for the records to be provided. This second written request for records shall include a statement explaining that if the requested records are not provided by the date specified, the penalties provided by s.
71.80(9m), Stats., may be imposed.
