Under this rule, as under current rules, an operator must have a written discharge response plan for a storage facility. The operator must keep a copy of the plan at the storage facility (and nearest local office), and must make the plan available to the department and local emergency responders upon request. The operator must keep the plan current at all times.

Under this rule, as under current rules, a discharge response plan must include all of the following:

• The name and telephone number of a responsible individual.

• A site map showing the location of each storage container or bin, and the type of fertilizer or pesticide stored in that container or bin.

• Procedures for responding to discharges at the facility.

• Procedures for using or disposing of recovered discharges.

Under this rule, a discharge response plan must also include all of the following:

• The Wisconsin spill reporting number (1-800-943-0003).

• A DATCP contact number.

• The names and telephone numbers of 2 local excavation contractors and 2 local earth hauling contractors.

• Procedures for responding to discharges from mobile containers shipped from the facility.

Under this rule, as under current rules, an operator must have personnel, equipment and supplies available for discharge responses. Equipment must include pumps, recovery containers and personal protective equipment. Personnel must be trained in emergency response procedures.

This rule creates new requirements related to the transportation of bulk fertilizer and pesticides by a storage facility operator. Under this rule:

• An operator must transport bulk fertilizer and pesticides in a manner that prevents reasonably foreseeable and preventable hazards to persons, property and the environment.

• Mobile containers must be securely anchored to transport vehicles. Other equipment on the transport vehicle that could come in contact with the mobile container must also be securely anchored to the vehicle.

• Mobile containers must be protected from damage and unauthorized access.

• An operator may not transport bulk fertilizer or pesticides in visibly broken, damaged or improperly sealed containers.

Under this rule, an operator must check for possible environmental contamination whenever a mixing and loading pad, sump or secondary containment structure leaks, is removed, or remains out of service for over 5 years:

As part of the environmental assessment, the operator must sample and analyze soils, groundwater and other media, as necessary, to determine the existence, nature and scope of possible contamination. The operator must report the results of the environmental assessment to DATCP.

Under this rule, as under current rules, an operator must keep records related to a storage facility. This rule modifies current record keeping requirements. Under this rule, an operator must keep records related to all of the following:

• Required API 653 inspections of bladder tanks, tank-in-tanks, and large storage containers constructed on-site (inspections, by a certified inspector, are required during construction and every 5 years after construction).

• Required pressure tests of buried or embedded piping.

• Required inspection and maintenance of storage containers and structures (this rule requires an operator to inspect and maintain storage containers and structures, as necessary, to maintain compliance with this rule).

This rule eliminates current record keeping requirements related to the following activities:

• Annual inventory reconciliation (this rule repeals annual inventory reconciliation requirement).

• Weekly inspections of liquid levels and appurtenances (this rule repeals weekly inspection requirements).

• Discharges to the environment (an operator must report discharges to DNR per DNR rules, and must provide DATCP with the operator's environmental assessment related to any leaking storage container).

Under this rule, an operator must:

• Keep API 653 inspection records for as long as the operator owns or operates the storage facility.

• Keep records of pressure tests, inspections and maintenance for at least 3 years.

• Keep the records at the storage facility or nearest local office.

• Make the records available to DATCP for inspection and copying upon request.

Under this rule, an operator must do all of the following before the operator sells or leases storage facility real estate for a different use (this rule does not limit other disclosures that may be required under other applicable law):

• Notify DATCP of the impending sale or lease.

• Disclose to the purchaser or lessee that the real estate has been used as a storage facility.

DATCP may inspect a storage facility for compliance with this rule, and may take enforcement action as necessary. Under current state statutes, DATCP is authorized to do all of the following as necessary:

• Conduct investigations and issue warning notices.

• Inspect facilities, and collect product and environmental samples for testing.

• Inspect and copy records.

• Issue subpoenas and investigative demands.

• Issue orders to correct violations of this rule. DATCP may issue orders on a summary basis, without prior notice or hearing, if necessary to protect public health or the environment.

• Seek court action to enforce this rule or a DATCP order. This may include actions for injunction, or for a civil forfeiture of up to $1,000 per violation (each day of violation constitutes a separate offense). DATCP may also seek criminal penalties if appropriate (fine of up to $200 and 6 months in jail, or both).

• Deny, suspend, revoke the operator's license as a fertilizer manufacturer or distributor or pesticide application business.

• Order an operator to investigate and clean up environmental contamination resulting from a discharge. DATCP may order removal of structures, as necessary, for the environmental cleanup.

• Deny reimbursement of environmental cleanup costs for which the operator would otherwise be eligible (for example, if a discharge occurs because of an intentional or grossly negligent violation of storage rules).

Pursuant to s. 227.21, Stats., DATCP will request permission from the attorney general and revisor of statutes to incorporate the following standards by reference in this rule, without reproducing the complete standards in this rule:

• American Petroleum Institute standard 650, Welded Steel Tanks for Oil Storage, 10th edition (September 1, 2003).

• American Petroleum Institute standard 653, Tank Inspection, Repair, Alteration, and Reconstruction, 3rd edition (December 1, 2001).

• Wisconsin Minimum Design Standards for Concrete Agrichemical Containment (February, 2005), written by Professor David W. Kammel, Department of Biological Systems Engineering, University of Wisconsin-Extension.

Copies of these standards will be kept on file with DATCP, the secretary of state and the revisor of statutes. Copies are not reproduced in this rule.

This rule will increase DATCP costs by approximately $24,400 per year. Additional staff time will be needed to train storage facility operators, review and comment on storage facility construction plans, and monitor compliance with construction standards and other requirements. This rule will not generate any new revenue to cover the increased costs, so DATCP will need to absorb the increase at the expense of other program activities. A complete fiscal estimate is attached.

This rule does not increase industry fees. By minimizing agrichemical discharges to the environment, this rule may limit the long-term growth of reimbursement claims under the agricultural chemical cleanup program. That would have a positive effect on DATCP's agricultural chemical cleanup fund, which is financed by industry fees. However, DATCP cannot accurately estimate the impact at this time.

This rule applies to commercial operators who store unpackaged bulk fertilizer or pesticides for sale or distribution. Many of these operators are “small businesses." A complete small business analysis (“initial regulatory flexibility analysis") is attached.

This rule does not apply to any of the following:

• Manure storage.

• On-farm storage of fertilizer or pesticide for on-farm use (not for sale or distribution).

• Facilities that store only packaged fertilizer or pesticides.

This rule establishes some new construction standards for fertilizer and pesticide storage facilities. These new standards apply to structures that are constructed or substantially altered after the effective date of this rule. This rule will not have a significant impact on an existing facility unless the operator substantially alters structures in that facility. Routine maintenance and repair is not considered a substantial alteration.

Under this rule, an operator must have construction plans reviewed by a professional engineer, and must submit the construction plans for discretionary review by DATCP. This may entail some additional costs for some operators, but will help prevent much more costly design and construction errors. This rule does not require DATCP pre-approval of new construction or alterations. This rule allows design flexibility, consistent with minimum standards.

Improved design and construction of storage facilities will minimize environmental contamination and costly cleanups that pose a large financial risk to storage facility operators. Environmental cleanup costs are typically much higher than preventive design and construction costs. Reduction of cleanup costs will also minimize financial demands on the industry-funded agricultural chemical cleanup program.

This rule reduces the overall recordkeeping burden for affected businesses (it adds some recordkeeping requirements but eliminates others). Consolidation of current fertilizer and pesticide bulk storage rules will make the rules easier to read, understand and implement.

DATCP has worked with University of Wisconsin-Extension to spell out basic design standards for concrete structures, so that engineering firms will not have to design those structures from scratch. That will reduce design costs for facility operators.

Under 2003 Wis. Act 145, DATCP and other agencies must adopt rules spelling out their rule enforcement policy for small businesses. DATCP has not incorporated a small business enforcement policy in this rule, but will propose a separate rule on that subject. DATCP will, to the maximum extent feasible, seek voluntary compliance with this rule.

This rule will help prevent environmental damage from fertilizer and pesticide spills at bulk storage facilities. This rule will have no significant adverse environmental impact. An environmental assessment is attached.

Michigan's bulk fertilizer and pesticide storage rules are similar to Wisconsin's. Michigan requires mixing and loading pads and secondary containment structures, but does not have minimum design or construction standards for those structures (nor does it require professional engineering review of design specifications).

Minnesota's bulk pesticide storage rules are similar, in many respects, to Wisconsin's. Minnesota has not promulgated bulk fertilizer storage rules, but has been enforcing proposed rules that are similar to Wisconsin's. Minnesota requires mixing and loading pads and secondary containment structures and has minimum design and construction standards for those structures. However, Minnesota does not require professional engineering review of design specifications.

Indiana and Iowa have rules that are similar to each other, and somewhat similar to Wisconsin's. They require mixing and loading pads and secondary containment structures, but they do not set minimum design or construction standards or require professional engineering review of design specifications.

Illinois has rules that are somewhat similar to Wisconsin's. Illinois requires mixing and loading pads and secondary containment structures, and Illinois also sets minimum design or construction standards or requires professional engineering review of design specifications.

NOTICE IS HEREBY GIVEN that pursuant to ss. 29.885 (4), 169.20 (4), 169.21 (3), 169.36 (9) (d), 169.39 (2) and (3), Stats., interpreting ss. 29.885 (4), 169.06 (3m), 169.20 (4), 169.21 (3), 169.36 (9) (d), 169.39 (2) and (3), Stats., the Department of Natural Resources will hold public hearings on revisions to chs. NR 12, 16 and 17, Wis. Adm. Code, relating to hound dog training and trialing on captive wild animals. 2003 Wisconsin Act 239 provided the ability to use captive coyote, fox and bobcat to train hunting dogs (hounds). Section 169.39 (2), Stats., requires the Department to promulgate and enforce rules for the housing, care, treatment, enrichment, feeding and sanitation of wild animals subject to regulation under ch. 169, Stats. In addition, this section goes on to state that the wild animals (in this case fox, coyote and bobcat) receive humane treatment, be held in sanitary conditions and that they receive adequate housing, care and food.