Rule-Making Notices
Notice of Hearing
Commerce
NOTICE IS HEREBY GIVEN that pursuant to sections
101.02 and
145.02, Stats., the Department of Commerce will hold a public hearing on proposed rules under Chapters
Comm 81 to
84 relating to the design, installation or construction, inspection and maintenance of private onsite wastewater treatment systems (POWTS).
Hearing Information
The public hearing will be held as follows:
Date and Time Location
June 27, 2011 Thompson Commerce Building
Monday Third Floor Conference Room #3B
at 10:30 A.M. 201 W. Washington Avenue
Madison, WI 53703
This hearing is held in an accessible facility. If you have special needs or circumstances that may make communication or accessibility difficult at the hearing, please call (608) 266-8741 or (608) 264-8777 (TTY) at least 10 days before 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 the Hearing and Submittal 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. Persons submitting comments will not receive individual responses. The hearing record on this proposed rulemaking will remain open until
July 11, 2011, 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. Written comments should be submitted to Roman Kaminski, at the Department of Commerce, P.O. Box 2689, Madison, WI 53701-2689, or email at
roman.kaminski@wisconsin.gov.
Copies of Proposed Rule
The proposed rules and an analysis of the proposed rules are available on the Internet at the Safety and Buildings Division website at
www.commerce.wi.gov/SB/. Paper copies may be obtained without cost from Norma McReynolds, at the Department of Commerce, P.O. Box 2689, Madison, WI 53701-2689, or email at
norma.mcreynolds@wisconsin.gov, or at telephone (608) 267-7907 or (608) 264-8777 (TTY). Copies will also be available at the public hearing.
Analysis Prepared by the Department of Commerce
Statute(s) interpreted
Statutory authority
Explanation of agency authority
Under the statutes cited, the Department of Commerce has the responsibility to protect public health, safety, and welfare in the design and construction of public buildings, places of employment and one- and 2-family dwellings and their components. Section
145.02, Stats., specifically grants the department general authority to protect public health, safety and welfare by establishing reasonable and effective standards for Private Onsite Wastewater Treatment Systems (POWTS). Section
145.20, Stats., delineates the responsibilities and duties of governmental units administering and enforcing the laws and rules pertaining to POWTS. In addition,
2009 Wisconsin Act 392 specifically directs the department to address the inventory and maintenance of private sewage systems.
Related statute or rule
None.
Summary of proposed rules
The proposed rules establish the requirements for the inventory and maintenance of POWTS as reflected in the statutory mandates of
2009 Wisconsin Act 392. The rules require the following:
Governmental units shall conduct, complete and maintain an inventory of all POWTS located in their jurisdiction by October 1, 2013.
Governmental units shall develop and implement a POWTS maintenance program by October 1, 2015.
In addition, the proposed rules include technical revisions to address code inconsistencies and new technologies.
Summary of, and comparison with, existing or proposed federal regulations
An Internet-based search of the Code of Federal Regulations (CFR) and the Federal Register found two existing federal regulations that address some aspects of private sewage systems:
1.
40 CFR 144.80(e) – Under federal regulations, private sewage systems are classified as Class V Wells, Shallow Injection Wells. Specifically,
40 CFR 144.3, defines “Sanitary Waste" as including domestic wastewater. Chapter
Comm 83 addresses treatment and dispersal of domestic wastewater. Also,
40 CFR 144.3, defines “Wells or Injection Wells" as including certain septic systems. Class V regulations specifically address “Large Capacity Septic Systems" which are defined as systems receiving sanitary wastes from multiple dwellings or from non-residential establishments where the system has a capacity to serve 20 or more person per day. These systems are “authorized by rule" provided they meet two minimum federal requirements: a) The owner or operator submits basic inventory information, and b) the injectate (wastewater) cannot endanger underground sources of drinking water. Chapter
Comm 83, Wis. Adm. Code, addresses Private Onsite Wastewater Treatment Systems (POWTS) which include septic systems that serve all structures residential and non-residential regardless of capacity. Owner information is required as part of the permitting process. Section
145.13, Wis. Stats., requires that chapter Comm 83, Wis. Adm. Code, comply with the provisions of chapter 160, Wis. Stats. Chapter
NR 140, Wis. Adm. Code, contains a list of substances that have preventative action limits and enforcement standards. This list is more specific than the current federal regulations. Chapter
Comm 83, Wis. Adm. Code, incorporates the applicable provisions of chapter 160, Wis. Stats., and chapter NR 140, Wis. Adm. Code.
2.
40 CFR Part 122 – Under federal regulations, large private sewage systems require National Pollutant Discharge Elimination System (NPDES) permits which currently are administered by the Department of Natural Resources under its Wisconsin Pollutant Discharge Elimination System (WPDES) program. The WPDES permit process is modeled after the NPDES permit process.
There are no proposed federal regulations that address the inventory and maintenance of POWTS as mandated by
2009 Wisconsin Act 392 or the other matters being clarified under this proposed rulemaking project.
Comparison with similar rules in adjacent states
An Internet-based search for private sewage system regulations in the states of Illinois, Iowa, Michigan and Minnesota found the following:
•
Illinois administrative code, Title 77: Public Health, Chapter I: Department of Public Health, Subchapter r: Water and Sewage, Part 905 Private Sewage Disposal Code regulates all private sewage disposal systems. The Division of Environmental Health's Environmental Engineering Section reviews and approves plans for private sewage disposal systems before construction. There are about 90 local health departments in Illinois that review sewage disposal system construction plans, either by authority of a local ordinance or as an “agent" of the department. In addition, the division licenses about 2,500 individuals to either install or pump out private sewage disposal systems.
•
Iowa's Environmental Protection Commission regulates private sewage disposal systems. Requirements relating to the design, location, installation, use and maintenance of installation private sewage systems can be found in Chapters
64 and
69 of the Iowa Administrative Code. In March 2009, the commission amended Chapter
64, “Wastewater Construction and Operation Permits," and adopted a new Chapter
69, “Private Sewage Disposal Systems." Provisions were added for tank abandonment, grease interceptors and permits by rule. A new rule was added pertaining to inspection of septic systems at the time of transfer of property. Other new provisions include requiring a final inspection on a new system installation and requiring counties to enter basic information about that system into the state onsite wastewater database system.
•
Michigan does not have a statewide onsite sewage system code. The Michigan Department of Environmental Quality under the authority of Part 22 Groundwater Quality Rules established the 1994 version of “The Michigan Criteria for Subsurface Sewage Disposal." These criteria are used by the Michigan Department of Environmental Quality and by 44 local health departments that develop their own rules to regulate single- and two-family systems.
•
Minnesota statute, Chapter
115 relating to water pollution control and sanitary districts, establishes rules for “Individual and Alternative Discharging Sewage Treatment Systems." The rules require counties to adopt local ordinances “containing minimum standards and criteria for the design, location, installation, use, maintenance, and closure of subsurface sewage treatment systems."
Summary of factual data and analytical methodologies
In developing the proposed rules, the department reviewed the provisions under
2009 Wisconsin Act 392 in conjunction with the department's broad authority under Chapters
101 and
145, Stats., to establish building and construction codes that establish minimum standards for the protection of public health, safety and welfare.
The methodology for the proposed revisions of chapters Comm 81 to 84 relating to POWTS, included a review and assessment by staff of code issues that require clarification.
In addition, the review and assessment process involved the participation of the Private Onsite Wastewater Treatment System (POWTS) Advisory Code Council. The members represent the many stakeholders involved in the private sewage system industry including designers, contractors, regulators, academics and manufacturers. The department gathered information and recommendations from the 11-member POWTS Advisory Code Council on the potential impacts of the administrative and technical requirements of the code. (A listing of the POWTS Advisory Code Council is provided at the end of this analysis.)
Effect on Small Business Including Analysis and Supporting Documents Used to Determine Effect on Small Business
The department believes the proposed rules will have a minimal additional impact on small business. The proposed rules implement the mandates imposed by
2009 Wisconsin Act 392. The Act affects governmental units (counties) and establishes deadlines for the completion of an inventory of private sewage systems within their jurisdictions. The department does not believe the rules will increase the effect on small businesses more than that imposed by the Act.
An economic impact report has not been required pursuant to s.
227.137, Stats.
Small business regulatory coordinator
The small business regulatory coordinator for the Department of Commerce is Carol Dunn, who may be contacted at telephone (608) 267-0297, or email at
carol.dunn@wisconsin.gov.
Initial regulatory flexibility analysis
1. Types of small businesses that will be affected by the rules.
The proposed rules will affect any business involved with the ownership, design, construction and installation, inspection, repair and maintenance of private onsite wastewater treatment systems. The proposed rules implement the mandates imposed by
2009 Wisconsin Act 392. The Act affects governmental units (counties) and establishes deadlines for the completion of an inventory of private sewage systems within their jurisdictions. The department does not believe the rules will increase the effect on small businesses more than that imposed by the Act.
2. Reporting, bookkeeping and other procedures required for compliance with the rules.
There are no additional reporting, bookkeeping or other procedures required for compliance with the rules.
3. Types of professional skills necessary for compliance with the rules.
There are no additional professional skills necessary for compliance with the rules.
4. Rules have a significant economic impact on small businesses.
No. Rules not submitted to Small Business Regulatory Review Board.
Environmental Impact
Notice is hereby given that the Department has prepared a preliminary Environmental Assessment (EA) on the proposed rules. The preliminary recommendation is a finding of no significant impact. Copies of the preliminary EA are available from the Department on request and will be available at the public hearings. Requests for the EA and comments on the EA should be directed to:
Division of Department of Commerce
P.O. Box 2689
Madison, WI 53701
Telephone (608) 266-8741
