Chapter 168

168.128   Deposit of fees.

168.13   Required records.

168.14   Misbranding.

168.15   Penalty.

168.16   Duties of department.

168.17   Attorney general and district attorney to prosecute.

SUBCHAPTER II

STORAGE OF DANGEROUS SUBSTANCES

168.21   Definitions.

168.22   Storage tanks.

168.23   Rules.

168.24   Secondary containment requirements.

168.25   Enforcement.

168.26   Penalties.

168.28   Inventory of petroleum product storage tanks.

subch. I of ch. 168 SUBCHAPTER I

PETROLEUM PRODUCT INSPECTIONS

168.01 168.01 Definitions. In this subchapter:

168.01(1) (1) “Department” means the department of agriculture, trade and consumer protection.

168.01(2) (2) “Inspector” means a duly authorized petroleum products inspector of the department.

168.01(2s) (2s) “Person” includes any individual, sole proprietorship, partnership, limited liability company, corporation, or association. A single-owner entity that is disregarded as a separate entity under ch. 71 is disregarded as a separate entity for purposes of this subchapter.

168.01(3) (3) “Petroleum products” means gasoline, gasoline-alcohol fuel blends, kerosene, fuel oil, burner oil and diesel fuel.

168.01(4) (4) “Supplier” includes a person who imports, or acquires immediately upon import, petroleum products by pipeline or marine vessel from a state, territory or possession of the United States or from a foreign country into a terminal and who is registered under 26 USC 4101 for tax-free transactions in gasoline. “Supplier” also includes a person who produces in this state; or imports into a terminal or bulk plant; or acquires immediately upon import by truck, railcar or barge into a terminal; alcohol or alcohol derivative products. “Supplier” also includes a person who produces, manufactures or refines petroleum products in this state. “Supplier” also includes a person who acquires petroleum products pursuant to an industry terminal exchange agreement or by a 2-party exchange under section 4105 of the Internal Revenue Code. “Supplier” does not include a retail dealer or wholesaler who merely blends alcohol with gasoline before the sale or distribution of the product and does not include a terminal operator who merely handles in a terminal petroleum products consigned to the terminal operator.

168.01 History History: 1971 c. 215; 1995 a. 27ss. 4473 and 9116 (5); 1997 a. 27; 2005 a. 25; 2011 a. 32; 2013 a. 20 ss. 1951 to 1953, 1955, 1957; 2015 a. 216.

168.04 168.04 Standards.

168.04(1) (1) The department by rule shall prescribe minimum product grade specifications for gasoline, automotive gasoline, gasoline-alcohol fuel blends, reformulated gasoline, as defined in s. 285.37 (1), and kerosene and may prescribe product grade specifications for aviation gasoline, fuel oils, and diesel fuels.

168.04(2) (2) 

168.04(2)(a) (a) Except as provided in par. (b), the rules required under sub. (1) shall prohibit gasoline, automotive gasoline, gasoline-alcohol fuel blends, and reformulated gasoline, as defined in s. 285.37 (1), beginning on August 1, 2004, from containing more than 0.5 percent, by volume, of methyl tertiary-butyl ether.

168.04(2)(b) (b) The rules required under sub. (1) shall not prohibit racing fuel used at racing events or in preparation for racing events from containing any amount of methyl tertiary-butyl ether.

168.04(3) (3) Except as otherwise provided in this section, rules promulgated under this section shall be in conformity with nationally recognized standards, specifications, and classifications, such as those published by ASTM International, the Society of Automotive Engineers, and the U.S. Environmental Protection Agency. The department may not promulgate or enforce a rule prohibiting the placement of additional information on the dispensing device.

168.04(4) (4) 

168.04(4)(a) (a) In this subsection, “gasoline-ethanol fuel blend” includes such a fuel blend for both automotive and nonautomotive uses.

168.04(4)(b) (b) Except as provided under par. (c), compliance with the requirements, established by the department by rule under sub. (1), of ASTM D4814-17 or the most current version of testing methods adopted by the department may be demonstrated by testing a gasoline-ethanol fuel blend or testing the gasoline base stock from which the gasoline-ethanol fuel blend is produced.

168.04(4)(c) (c) The department may promulgate rules that require that a gasoline-ethanol fuel blend and the gasoline base stock from which the gasoline-ethanol fuel blend is produced meet the requirements of ASTM D4814-17, or the most current version of testing methods adopted by the department. A rule promulgated under this paragraph may not take effect sooner than July 1, 2019.

168.04 History History: 1971 c. 206; 1977 c. 29; 1979 c. 140; 1989 a. 295; 1991 a. 302; 1995 a. 227; 2003 a. 45; 2015 a. 186; 2017 a. 59.

168.04 Cross-reference Cross-reference: See also ch. ATCP 94, Wis. adm. code.

168.04 Annotation Legislative Council Note, 1979: Clarifies that the department of industry, labor and human relations has authority to promulgate standards for gasoline-alcohol fuel blends. The existing requirement that rules be in conformity with nationally recognized standards, including those published by the U.S. environmental protection agency, should ensure that any rules establishing standards for gasoline-alcohol fuel blends are consistent with federal rulings on those additives permitted to be mixed with unleaded gasoline. [Bill 456-A]

168.05 168.05 Inspection of petroleum products.

168.05(1) (1) No petroleum product imported into and received in this state or received from a manufacturer or refiner or from a marine or pipeline terminal within this state may be unloaded from its original container except as provided under sub. (5), sold, offered for sale or used until a true sample of not less than 8 ounces is taken as provided in this subchapter. This subsection does not apply if the department has previously inspected the petroleum product at the refinery, marine or pipeline terminal. Each person importing or receiving a petroleum product which has not been previously inspected shall notify the inspector in the person’s district of the receipt thereof, and the inspector shall take a sample of the petroleum product.

168.05(2) (2) If such petroleum product is received on a regular business day between the hours of 7:45 a.m. and 4:30 p.m., such notice shall be given forthwith upon receipt of such petroleum product. If received at any other time, such notice shall be given between the next succeeding hours of 7:45 a.m. and 10 a.m. of a regular business day. Provided, that if any petroleum product is received on Saturday, Sunday, or any legal holiday, designated in s. 995.20, such notice shall be given on the next following regular business day between the hours of 7:45 a.m. and 10 a.m.

168.05(3) (3) If the inspector does not, upon proper notice, after a reasonable length of time, take such sample, the recipient of such petroleum product may, in the presence of a disinterested witness, open such original container and take a true sample of not less than 8 ounces of the contents thereof. Such sample shall be immediately placed in a clean container which is in compliance with s. 168.11 (2) and (3) and tightly closed. The recipient shall record upon a label attached to such container the means of conveyance, the type of original container, the product name and quantity of the contents thereof, and such other information as the department reasonably requires for the proper identification of such shipment. Such sample thus taken shall be held for delivery, upon demand, to the inspector. After such sample is taken such petroleum product may be unloaded, sold, offered for sale or used the same as if sampled by the inspector.

168.05(4) (4) For the purpose of this section, the following shall constitute a reasonable length of time in which an inspector shall take the sample herein required: If notice is properly given to an inspector before the hour of 11:45 a.m., the inspector shall take such sample before the hour of 4:30 p.m. of the day; if notice is properly given between the hours of 11:45 a.m. and 4:30 p.m., such sample shall be taken before the hour of 11:45 a.m. of the next following regular business day. Saturdays, Sundays, and legal holidays, designated in s. 995.20, shall not be considered regular business days.

168.05(5) (5) The department may permit a recipient to unload such petroleum product prior to inspection if the recipient submits an application setting forth good and sufficient reasons, and may unload ships or boats without inspection if an emergency is declared by the coast guard. A recipient must notify the department as required by sub. (2) and the department shall revoke permission granted under this subsection if the recipient violates sub. (2).

168.05(6) (6) This section does not apply to a petroleum product that is a renewable fuel exempt under s. 78.01 (2n) from the tax under s. 78.01 (1) unless inspection is required by federal law.

168.05 History History: 1977 c. 21; 1977 c. 187 s. 135; 1977 c. 273, 418; 1983 a. 192 s. 304; 1995 a. 27; 2005 a. 155; 2009 a. 401; 2013 a. 20.

168.06 168.06 Powers.

168.06(1) (1) For the purposes of administering this subchapter, inspectors may take samples of gasoline, gasoline-alcohol fuel blends, kerosene, other refined oils, fuel oils and petroleum distillates for tests and make inspections at any points within or without this state, and may open any original container containing gasoline, gasoline-alcohol fuel blends, kerosene, other refined oils, fuel oils and petroleum distillates and take a true sample of not less than 8 ounces of the contents thereof, even though the original containers may still be in the possession of a common or contract carrier, provided the opening and sampling does not unduly inconvenience or hamper the transportation of the products. After the original containers are opened and sampled the same shall be resealed with seals furnished by the department for such purposes. The authority conferred by this section shall be in addition to, and not in limitation of, any of the provisions of s. 168.05.

168.06(2) (2) If any petroleum product is emptied or transferred into any container in which is contained any other grade of petroleum product, then the entire commingling shall be deemed uninspected and a sample of such commingled petroleum product shall be taken before such commingled petroleum product is removed from such container, sold, offered for sale or used.

168.06(3) (3) Notice of such commingling of any petroleum products shall be given in the same manner and subject to the same conditions as notice of the receipts of petroleum products as provided in s. 168.05. The sample of such commingled petroleum products shall be taken by the inspector within a reasonable length of time, as defined and set forth in s. 168.05, after notice. If such inspector does not take such sample within such time, the commingler shall take a true sample of not less than 8 ounces of the commingled petroleum products. The taking, sealing and holding of such sample by the commingler shall, so far as applicable, be governed by the provisions of s. 168.05 relating to the same by a person receiving a petroleum product.

168.06 History History: 1971 c. 206; 1979 c. 140; 2013 a. 20; 2013 a. 168 s. 21.

168.07 168.07 Inspections; requirements.

168.07(1) (1) The inspector shall inspect each sample of petroleum product and if the inspector finds that it meets the minimum specifications prescribed by the department, the inspector shall issue an inspection certificate, except that inspections for particular grade specifications shall be at the discretion of the department. If an inspector believes that a product has been misidentified, an inspection shall be performed. If the inspector finds that the petroleum product does not meet the minimum specifications prescribed by the department, the inspector shall notify the person for whom the inspection was made. After such notice, no person may sell or use the product in this state or remove it from storage as long as it fails to meet the minimum specifications prescribed by the department or until satisfactory disposition is approved by the inspector. Any transporter, wholesaler or distributor of petroleum products who delivers or causes to be delivered a petroleum product that fails to meet the minimum specifications prescribed by the department shall, at the direction of the department, remove the petroleum product and dispose of it in a manner approved by the department. The department may contract for the performance of testing conducted under this subsection.

168.07(2) (2) Inspections under sub. (1) shall be conducted, so far as applicable, in accordance with the methods outlined in the latest revision of the ASTM Book of Standards of ASTM International.

168.07 History History: 1971 c. 206; 1977 c. 29, 418; 1991 a. 302; 1995 a. 27; 1999 a. 9; 2015 a. 186.

168.08 168.08 Records. The department shall keep a record of each inspection made, showing:

168.08(1) (1) Time and place of each inspection.

168.08(6) (6) Name and address of person for whom inspection is made.

168.08 History History: 1995 a. 27; 2013 a. 20.

168.09 168.09 Authority to enter. Any inspector may enter in or upon the premises of any manufacturer, vendor, dealer or user of gasoline, gasoline-alcohol fuel blends, kerosene, other refined oils, fuel oils and petroleum distillates, during regular business hours to determine whether any petroleum product intended for sale or use has not been sampled and inspected in accordance with this subchapter.

168.09 History History: 1971 c. 206; 1979 c. 140; 2013 a. 20.

168.10 168.10 Access to records. Every agent or employee of any railroad company or other transportation company and every person transporting gasoline, gasoline-alcohol fuel blends, kerosene, other refined oils, fuel oils and petroleum distillates, having the custody of books or records showing the shipment or receipt of gasoline, gasoline-alcohol fuel blends, kerosene, or other refined oils, fuel oils and petroleum distillates shall give and permit the department and the inspectors; and, in regard to the fee under s. 168.12 (1), shall give and permit the department of revenue; free access to such books and records for the purpose of determining the amount of petroleum products shipped and received. All clerks, bookkeepers, express agents, railroad agents or officials, employees, or common carriers, or other persons shall provide the department and the inspectors; and, in regard to the fee under s. 168.12 (1), shall provide the department of revenue; all information in their possession when so requested in tracing, finding, sampling and inspecting such shipments.

168.10 History History: 1971 c. 206; 1979 c. 140; 1995 a. 27.

168.105 168.105 Dispensing gasoline-ethanol fuel blends. A dispensing device at a retail station may be used to dispense through the same fueling nozzle and hose gasoline-ethanol fuel blends containing greater than 10 percent and not more than 15 percent ethanol by volume, gasoline containing no ethanol, and gasoline-ethanol fuel blends containing not more than 10 percent ethanol by volume if any of the following applies:

168.105(1) (1) All of the following apply:

168.105(1)(a) (a) The retail station provides a device having at least one fueling nozzle and hose that dispenses only gasoline-ethanol fuel blends containing no more than 10 percent ethanol by volume.

168.105(1)(b) (b) A label satisfying the requirements under s. 168.11 (1) (b) 3. is prominently affixed to the dispensing device stating “Passenger Vehicles Only. Use in Other Vehicles, Engines and Equipment May Violate Federal Law.”

168.105(1)(c) (c) The retail station displays signs informing customers of the availability and location of the device required under par. (a).

168.105(2) (2) A label satisfying the requirements under s. 168.11 (1) (b) 3. is prominently affixed to the dispensing device that states that a minimum purchase of 4 gallons is required.

168.105 History History: 2019 a. 64; 2021 a. 239 s. 74.

168.11 168.11 Identifications.

168.11(1) (1) 

168.11(1)(a) (a) Except as provided in par. (b), all devices used to draw petroleum products from storage containers at filling stations, garages or other places where petroleum products are sold or offered for sale shall be marked or labeled in a conspicuous place and in a conspicuous manner with the name and the grades of the petroleum product being dispensed.

168.11(1)(b) (b)

168.11(1)(b)1. 1. A device that dispenses a gasoline-ethanol fuel blend for sale at retail shall be marked or labeled with the percentage of ethanol at all times when the product is offered for sale.

168.11(1)(b)2. 2. A device that dispenses, for sale at retail, a reformulated gasoline, as defined in s. 285.37 (1), that contains an oxygenate other than ethanol shall be marked or labeled with the identity of the oxygenate at all times when the product is offered for sale. The label shall identify the oxygenate or oxygenates in the manner specified by the department by rule.

168.11(1)(b)3. 3. A label under this paragraph shall be on the front or side of the upper half of the dispensing device and shall be conspicuous and legible to a customer when viewed from the driver’s seat of a motor vehicle that is located within 6 feet of the dispensing device. The device may also be marked or labeled with any product grade specifications prescribed under s. 168.04.

168.11(2) (2) No person may deliver, place, receive or store in any visible container any gasoline; any product of petroleum, regardless of name, meeting the gasoline specifications prescribed by the department under s. 168.04; or any product of petroleum commonly or commercially used as a fuel in a spark-ignition internal combustion engine or as a fuel for any appliance or device if such product of petroleum has a flash point of less than 100° F. when tested in the Tagliabue closed cup tester unless the container is constructed of sound metal or of equally sound nonflammable material meeting the requirements of the department’s flammable and combustible liquids code; is substantially a bright red color; and has the common name of the product clearly labeled or painted on it. These requirements do not apply to:

168.11(2)(a) (a) The fuel supply tank permanently connected to an internal combustion engine;

168.11(2)(b) (b) The fuel supply tank which is structurally a part of any appliance or device consuming the fuel;

168.11(2)(c) (c) The first use of any container of one gallon or less originally filled by a manufacturer or packager when the container complies with the packaging and labeling requirements of the federal government and its agencies; or

168.11(2)(d) (d) Containers of 275 gallons capacity or more. This provision does not exempt such containers from the identification requirements specified in rules promulgated by the department.

168.11(3) (3) Except for containers referred to in sub. (2) (a), (b) and (c) no person may deliver, place, receive or store any kerosene, diesel fuel or burner oil, or a like product of petroleum which has a flash point of 100° F. or more when tested in the Tagliabue closed cup tester, in any visible container which is in any manner colored red.

168.11(4) (4) No person may use interchangeably any pipeline, hose, pump or metering device to dispense gasoline, or a like product of petroleum which has a flash point of less than 100° F. when tested in the Tagliabue closed cup tester, and to dispense kerosene, diesel fuel or burner fuel oils, or a like product of petroleum which has a flash point of 100° F. or more when tested in the Tagliabue closed cup tester, unless the pipeline, hose, pump or metering device has been sufficiently flushed and cleaned before the interchanged use to eliminate any contamination of products due to the interchanged use.

168.11 History History: 1971 c. 164, 206; 1977 c. 29; 1979 c. 92; 1987 a. 403; 1989 a. 295; 1993 a. 491; 1995 a. 27, 51, 225, 227; 1997 a. 27; 2011 a. 146.

168.12 168.12 Fees for oil inspection.

168.12(1) (1) Except as provided in subs. (1g) and (1r), there is imposed a petroleum inspection fee at the rate of 2 cents per gallon on all petroleum products that are received by a supplier for sale in this state or for sale for export to this state. The department of revenue shall determine when a petroleum product is received under this subsection in the same manner that it determines under s. 78.07 when motor vehicle fuel is received. The fee shall be paid under s. 168.125 and shall be based on the number of gallons reported under s. 168.125.

168.12(1g) (1g) The fee under sub. (1) is not imposed on petroleum products that are shipped from storage at a refinery, marine terminal, pipeline terminal, pipeline tank farm or place of manufacture to a person for storage at another refinery, marine terminal, pipeline terminal, pipeline tank farm or place of manufacture.

168.12(1r) (1r) The fee under sub. (1) is not imposed on petroleum products exported from this state by a person who is licensed under sub. (7) or s. 78.09.