208 Osceola Street

Oshkosh, WI 54901

Wolf River Room

Handicapped accessible

You may obtain a free copy of this rule in any of the following ways (copies will also be available at the hearings):

By mailing a request to the Wisconsin Department Agriculture, Trade, and Consumer Protection, Division of Agricultural Resource Management, 2811 Agriculture Drive, Madison, WI 53708-8911.

By e-mailing matt.laak@datcp.state.wi.us.

By calling 608-224-4518.

By visiting DATCP's website at:

By visiting the Wisconsin Administrative Rules website at:

You may submit written comments for the hearing record, whether or not you attend any hearing. Written comments must be received no later than February 17, 2006. You may submit written comments in any of the following ways:

By mail to Matt Laak, Wisconsin Department of Agriculture, Trade and Consumer Protection, Division of Agricultural Resource Management, P. O. Box 8911, Madison, WI 53708-8911.

By e-mail to matt.laak@datcp.state.wi.us.

By visiting the Wisconsin Administrative Rules website at:
https://apps4.dhfs.state.wi.us/admrules/public/Home. You will need to register on the website if you wish to submit hearing comments via the website (there is no charge).

DATCP's Small Business Regulatory Coordinator is Keeley Moll. You may contact the Small Business Regulatory Coordinator in any of the following ways:

By mail to Keeley Moll, Wisconsin Department of Agriculture, Trade and Consumer Protection, Office of the Secretary, P. O. Box 8911, Madison, WI 53708-8911.

By e-mail at keeley.moll@datcp.state.wi.us.

By telephone at 608-224-5039.

Hearing Impaired Access

Hearing impaired persons may request an interpreter for these hearings. Requests must be made by Monday, January 11, 2006. You may request an interpreter in any of the following ways:

By writing to Matt Laak, Division of Agricultural Resource Management, 2811 Agriculture Drive, Madison, WI 53708-8911, telephone 608-224-4518. Alternatively, you may contact the DATCP TDD at 608-224-5058.

By mailing a request to the Matt Laak, Division of Agricultural Resource Management, Wisconsin Department Agriculture, Trade, and Consumer Protection, 2811 Agriculture Drive, Madison, WI 53708-8911.

By e-mailing matt.laak@datcp.state.wi.us.

By calling 608-224-4518.

By contacting the DATCP TDD at 608-224-5058.

The Department of Agriculture, Trade and Consumer Protection (“DATCP") currently regulates fertilizer and pesticide bulk storage facilities. DATCP regulates to ensure safe storage of fertilizer and pesticides, and to prevent spills that may harm persons, property and the environment.

This rule consolidates, reorganizes and modifies current rules. This rule regulates the construction, operation and maintenance of fertilizer and pesticide bulk storage facilities. This rule requires operators to file construction plans with DATCP before constructing certain bulk storage structures. This rule also creates new construction standards for some facilities.

Statutory Authority: ss. 93.07 (1) and 94.645 (3), Stats.

Statute Interpreted: s. 94.645, Stats.

DATCP has broad authority, under s. 93.07 (1), Stats., to adopt rules to implement laws under its jurisdiction. DATCP has specific authority to regulate fertilizer and pesticide bulk storage under s. 94.645, Stats., and has rule making authority for that purpose under s. 94.645 (3), Stats.

This rule applies to commercial facilities that store unpackaged bulk fertilizer or pesticides. This rule does not apply to any of the following:

• Manure storage.

• On-farm storage, mixing or loading of fertilizer or pesticides for on-farm use (not for sale or distribution).

• Facilities that store only packaged fertilizer or pesticides.

DATCP currently administers separate bulk storage rules for fertilizer and pesticides. Since many facilities store fertilizer and pesticides, this rule consolidates fertilizer and pesticide bulk storage rules in a single rule chapter. This consolidation will make it easier for storage facility operators to understand and comply with the rules.

This rule establishes some new construction standards for fertilizer and pesticide storage facilities. But the new standards apply only to structures that are constructed or substantially altered on or after the effective date of this rule. Routine maintenance and repair is not considered a substantial alteration.

DATCP currently administers an agricultural chemical cleanup program, funded by fertilizer and pesticide license fees. Under that program, DATCP compensates facility operators for fertilizer and pesticide spill cleanup costs. Proper construction and maintenance of storage facilities can reduce spills and spill cleanup costs.

This rule does not change the agricultural chemical cleanup program. But by improving storage facility construction and maintenance, this rule will help minimize spills and spill cleanup costs. That will help to control costs under the agricultural chemical cleanup program.

Under current rules, fertilizer and pesticide bulk storage facilities must be constructed to certain standards. A professional engineer is often involved. However, current rules do not require plan review by DATCP or a professional engineer.

Under this rule, at least 21 days before an operator constructs or substantially alters a storage facility, the operator must file all of the following with DATCP:

• Plans for the construction or alteration (design specifications).

• A signed written statement by a professional engineer, certifying that the plans comply with this rule.

• The approximate date on which the operator plans to start construction.

DATCP may review and comment on plans filed under this rule, but is not required to do so. A failure to comment does not signify approval. An operator is not required to obtain DATCP approval, but construction must conform to this rule and to the plans filed with DATCP.

An operator may not deviate from the plans without prior written notice to DATCP. DATCP may, in its discretion, inspect the construction (DATCP is not required to inspect). The operator or a person chosen by the operator must inspect the construction of new concrete structures to ensure that the construction conforms to plans filed with DATCP. The operator must file a copy of the inspection report with DATCP.

Under this rule, as under current rules, DATCP may grant a variance from applicable requirements if DATCP finds that a nonconforming feature will provide substantially equivalent protection for waters of the state. This rule clarifies that an operator must submit a variance request in writing. The request must clearly identify the proposed nonconforming feature. If the nonconforming feature affects a secondary containment structure or a mixing and loading pad, a professional engineer must certify that it will provide substantially equivalent protection for waters of the state. DATCP must grant or deny the request within 30 days, but may extend the response deadline for good cause.

Under this rule, as under current rules, storage and handling operations must be conducted over a mixing and loading pad or secondary containment structure designed to contain spills. Under this rule, new mixing and loading pads, secondary containment structures and bulk dry fertilizer buildings must be located at least 5 feet above bedrock and groundwater, at least 1,000 feet from any navigable lake, at least 300 feet from any navigable stream, and outside any 100-year floodplain. These siting limitations do not apply to the reconstruction, expansion or alteration of a mixing and loading pad, secondary containment structure or storage building that was in use prior to the effective date of this rule.

Under this rule, storage facilities must comply with well setback requirements contained in chs. NR 811 and 812, Wis. Adm. Code (the state well code). All water supplies to a storage facility must be protected against back flow. Protection may include an air gap at each water supply outlet, or a back flow protection device that complies with ch. Comm 82, Wis. Adm. Code (the state plumbing code).

Under this rule, as under current rules, storage containers must be designed and constructed to prevent discharges, and must be located within a secondary containment structure. Storage containers must resist corrosion, puncture and cracking, and must be constructed of materials that do not react with stored products. Storage containers must be strong enough to hold the largest volume of product that may be stored in them.

This rule establishes new requirements related to bladder tanks, tank-in-tanks and field-erected storage containers constructed or substantially altered after the effective date of this rule. The storage containers must comply with construction standards in American Petroleum Institute standard API 650. An inspector certified under American Petroleum Institute Standard API 653 must inspect the storage containers at least once every 5 years, using inspection procedures specified by API 653.

This rule, like the current rules, requires an operator to anchor storage containers. Under this rule, anchor plates may not be embedded in the floor of a secondary containment structure unless the structure is specifically designed to handle the resulting stresses. Anchor plates may not be embedded in walls of a secondary containment structure.

This rule, like the current rule, establishes standards for storage container appurtenances such as valves, pipes, pumps, fittings, hoses and metering devices. Under this rule, as under the current rule, storage container connections must be equipped with shutoff valves. Appurtenances must be made of suitable materials, and must be designed to prevent discharges. Pipes and other appurtenances must be properly supported to prevent sagging and breakage.

Under current rules, storage containers must have gauging devices that show the volume of liquid in the containers. Liquid level gauging devices are no longer required under this rule. But if a storage container has a liquid level gauging device, the device must meet standards under this rule (the standards are similar to current rules). Under this rule, if a storage container has an external sight gauge, the site gauge must be anchored to the container at intervals of no more than 10 feet. This rule, like the current rules, prohibits external sight gauges on pesticide containers.

This rule establishes some new standards for appurtenances. Under this rule:

• Piping connections must be threaded, welded, fused, permanently band-clamped, or located over a mixing and loading pad or secondary containment structure (to prevent uncontained discharges from insecure connections).

• Piping or appurtenances constructed or substantially altered after the effective date of this rule may not be placed below ground, in concrete, or through any mixing and loading pad or secondary containment structure.

• An operator must annually inspect and pressure test any pipe or appurtenance installed below ground, in concrete (to ensure that there is no hidden discharge to the environment).

• An operator must annually inspect and test the joint between an appurtenance and any containment structure wall through which the appurtenance extends.

Under this rule, as under current rules, an operator must keep storage containers individually locked, or in a secure building or outdoor enclosure. Unlike current rules, this rule does not require individual locking of pesticide storage containers kept in a secure outdoor enclosure. This rule clarifies fencing requirements for outdoor enclosures.

Current rules prohibit an operator from filling a storage container beyond capacity. This rule prohibits an operator from filling a storage container beyond 95% of capacity (except mini-bulk containers or containers kept at constant temperature). This rule, like current rules, requires proper labeling and venting of storage containers.

This rule, like current rules, prohibits underground storage of bulk liquid fertilizer, bulk liquid pesticide, or recovered discharges. Sumps constructed after the effective date of this rule may not be more than 2 feet deep, and may not have a capacity of more than 50 gallons (see below).

Current rules require weekly inspections of liquid levels and appurtenances, and monthly inspections of vents. Under this rule, an operator is no longer required to make these specific inspections (or keep records of them), but must inspect and maintain storage containers to minimize discharge risks.

Under this rule, as under the current rules, an operator must clean and rinse any abandoned storage container, and remove all appurtenances from the abandoned container. The operator must remove any underground storage container (including any sump that has a capacity of more than 50 gallons) that is abandoned.

This rule expands and clarifies current requirements related to storage of dry bulk fertilizer or pesticide. Under this rule, dry bulk products must be stored in a fully enclosed building. However, an operator may store the following products outdoors:

• Packaged products that are fully enclosed in durable weatherproof packages or containers.