DNR Holds Public Hearing on PFAS Scope Statements

On Nov. 12, the Department of Natural Resources (DNR) held a preliminary public hearing on three scope statements seeking to regulate PFAS chemicals in Wisconsin.

PFAS (per- and polyfluoroalkyl substances) are man-made chemicals that are found in many everyday products, including nonstick pans, cleaning products, paints, and firefighting foam. The most extensively studied PFAS compounds are PFOA and PFOS, which have been phased out of domestic manufacturing over the past decade. Competing studies debate whether or not these chemicals have negative health effects and, if they do, at what level they are harmful.

Gov. Tony Evers approved the three scope statements on PFAS in August. The scope statements would:

  1. Adopt groundwater standards. (SS 090-19). Under this scope statement, DNR would likely promulgate the Department of Health Services’s (DHS) recommended standards of 20 ppt combined for PFOA and PFOS and a 2 ppt preventive action limit. This rule would apply to all regulated facilities that may impact groundwater.
  2. Adopt surface water quality standards for PFAS. (SS 091-19). Under the scope statement, DNR could also change Wisconsin Pollution Discharge Elimination System (WPDES) permit implementation procedures related to PFAS chemicals, including additional monitoring and new effluent limitations. Currently, DNR can address PFAS discharges in WPDES permits on a case-by-case basis. The proposed rule would set a uniform standard and procedures.
  3. Adopt maximum contaminant levels (MCLs) for drinking water. (SS 089-19). MCLs for drinking water would mostly affect municipal water systems.

Co-chair of the Legislature’s Joint Committee for Review of Administrative Rules Sen. Stephen Nass (R-Whitewater) requested DNR hold the preliminary public hearing and comment period on each of the scope statements, pursuant to JCRAR’s authority under Wisconsin’s rulemaking statutes (Wis. Stat. Ch. 227). The JCRAR co-chairs’ authority to request preliminary public input was established in the Regulations from the Executive in Need of Scrutiny (REINS) Act passed in 2017.

The Nov. 12 preliminary public hearing addressed all three scope statements. Testifying in support of the scope statements were Clean Wisconsin, Wisconsin Conservation Voters, and an individual from De Pere, Wis.

MEG Wastewater provided comments in support of an advisory committee to DNR as the department continues with the rulemaking process. MEG noted their support for regulations based on credible science. MEG is part of the Municipal Water Coalition, an alliance of groups representing municipal water and wastewater utilities.

Also providing comments was Scott Manley, Executive Vice President of Wisconsin Manufacturers & Commerce, on behalf of the Water Quality Coalition, a coalition of industries, job creators, and taxpayers in the state, as well as scientists and legal scholars, which supports balanced, science-based environmental standards to regulate PFAS.  The Water Quality Coalition recommended that DNR narrow the scope statements to regulate PFOA and PFOS only. As drafted, the scope statements provide DNR broad discretion to regulate any of the over 4,000 PFAS compounds in a single rulemaking process. Not all of these PFAS compounds are health hazards, and some are even federally approved by the Food & Drug Administration.

According to the Water Quality Coalition, the scope statements lack the required detail and specificity to comply with the administrative rulemaking requirements in Ch. 227. Furthermore, proposed rules seeking to regulate such a wide variety of compounds would make it unworkable for the public and Legislature to provide meaningful feedback on the practical application of the regulations.

DNR is still accepting written comments on the scope statements until Nov. 19. After the comment period, the DNR Board can approve the scope statements. DNR plans to ask the board for approval in January 2020. Once the board approves the scope statements, DNR can begin work on drafting the rules and economic impact analyses before sending the rule to the Legislature for review. At the Nov. 12 hearing, DNR estimated rules would be finalized and enforceable by 2022.