PFAS

The Wisconsin Natural Resources Board (NRB) sets policy for the state’s Department of Natural Resources (DNR). This includes overseeing and ultimately approving administrative rules proposed by the department.

The following three rules listed in this section include regulations and standards affecting certain PFAS compounds. NRB considered adoption of the rules at its public meeting on February 23, 2022. Below is a summary of the actions NRB could have taken on each rule:

Adopted unanimously by the Natural Resources Board

Status: NRB considered the draft rule for adoption during its February 2022 meeting. DNR’s final economic impact analysis of the rule was released in September 2021. PFAS surface water rulemaking website.

Summary: Revision of chapters NR 105, NR 106, and NR 219 and other related regulations to add surface water quality criteria and analytical methods for PFOS, PFOA, and any other PFAS for the purpose of protecting public health. Additionally, revisions to the procedures in the Wisconsin Pollutant Discharge Elimination System (WPDES) permitting program to implement the new water quality criteria, 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.

Scope Statement: SS 091-19 was approved by the governor in August 2019.

NRB Order: WY-23-19

A motion to adopt the rule failed to pass the Natural Resources Board on a 3-3-1 vote

Status: NRB considered the draft rule for adoption during its February 2022 meeting. DNR’s final economic impact analysis of the rule was released in November 2021. NR 140 rulemaking website.

Summary: DNR proposes promulgating the Department of Health Services (DHS) recommended standards of 20 parts per trillion (ppt) combined for PFOA and PFOS and a 2 ppt Preventive Action Limit (PAL). This rule would apply to all regulated facilities that may impact groundwater.

Scope Statement: SS 090-19 was approved by the governor in August 2019.

NRB Order: DG-15-19

These companion bills were introduced by the Joint Committee for Review of Administrative Rules, as required by law, after the committee voted to partially suspend the DNR’s emergency rule WA-06-20 (E) on firefighting foam containing PFAS.

• Jan. 28, 2021
  SB 34 Bill Text and Legislative History
• Jan. 25, 2021
  AB 13 Bill Text and Legislative History
• Jan. 14, 2021
  JCRAR Suspends DNR’s Foam Rule
• Sep. 09, 2020
  Firefighting Foam Emergency Rulemaking

These companion bills constitute the executive budget act of the 2021 Legislature.  In his proposed budget for the 2021-23 biennium, Governor Tony Evers included the following provisions related to PFAS:

• Allocate $1.6 million for 11 positions at the Department of Natural Resources to develop and implement a PFAS action plan.
• Allocate $2.1 million for statewide PFAS monitoring and testing.
• Provide $20 million for a municipal grant program for PFAS testing and remediation.
• Adds $1 million in FY 2021-22 for the collection and disposal of firefighting foam that contains PFAS.
• Require various PFAS environmental standards.

These provisions were removed by the Legislature.

• Feb. 16, 2021
  AB 68 Bill Text and Legislative History
• Feb. 16, 2021
  SB 111 Bill Text and Legislative History

According to the Legislative Reference Bureau: “This bill requires the Department of Agriculture, Trade and Consumer Protection to collect and store or dispose of unused fire fighting foams that contain perfluoroalkyl or polyfluoroalkyl substances (PFAS) and that are voluntarily surrendered. The bill allows DATCP to contract with a third party to conduct the collection and storage or disposal. The bill requires DATCP or the third party administering the collection program to prioritize collecting from the state and from cities, villages, towns, and counties. Under the bill, any PFAS foams that are collected under the program must be stored in an environmentally safe manner until properly disposed of or treated according to DNR’s administrative rules.”

• Mar. 05, 2021
  AB 140 Text and Legislative History
• Feb. 24, 2021
  SB 156 Bill Text and Legislative History

This bill would create a municipal grant program, administered by DNR, to address concentrations of PFAS found in local communities. The grants would be funded at $10 million annually from federal funds provided under the American Rescue Plan Act of 2021.

• Jun. 08, 2021
  AB 392 Bill Text and Legislative History

DNR WisPAC Website

In accordance with Executive Order 40 (August 2019), Wisconsin DNR and other state agencies convened the Wisconsin PFAS Action Council (WisPAC). The executive order directed the council to develop an action plan. A draft plan was released for public comment in September 2020.

On December 16, 2020, Governor Evers announced that WisPAC had released the statewide PFAS Action Plan. The plan includes 25 action items, organized into eight themes: Standard Setting, Sampling, Pollution Prevention, Engagement, Education and Communication, Research and Knowledge, Phase Out, Future Investments, and Identify and Address Historic Discharges.

On January 22, 2021, Governor Evers announced that his administration will solicit bids from law firms to find a legal team to litigate against companies responsible for discharging PFAS compounds in Wisconsin. This follows from the PFAS Action Plan recommendation to “take appropriate legal actions against companies responsible for PFAS discharges.”

DNR website regarding PFAS in Marinette and Peshtigo

As we reported here, in January 2021, three companies settled a $17.5 million lawsuit with Peshtigo residents concerning PFAS contamination in the area. The PFAS contamination came from firefighting foam developed and tested at the Fire Technology Center and nearby sites in the Peshtigo/Marinette area. Tyco has committed to remediating the contamination and paying for a new water line to provide clean drinking water to area residents. In May 2020, it was reported that sampling at 247 out of 269 wells in and around Peshtigo had PFAS levels below the recommended federal health standard (70 ppt), while 38 wells had PFAS levels above the state’s recommended groundwater standard (20 ppt).

City of La Crosse website regarding PFAS near the La Crosse Regional Airport

According to the City of La Crosse, PFAS compounds were “detected in two City of La Crosse municipal wells and groundwater samples near the La Crosse Regional Airport. The levels of PFAS detected are a result of the utilization of firefighting foam” on French Island, which lies just west of La Crosse and contains both the La Crosse Regional Airport and the adjacent Town of Campbell. Subsequent testing at private wells in the surrounding area found more than 100 private wells with elevated levels of PFAS.

On February 9, an attorney representing a group of 125 Campbell residents served the City of La Crosse with a lawsuit over the PFAS contamination in private wells. On February 11, the La Crosse Common Council voted to hire attorneys to litigate against chemical companies that manufactured the PFAS chemicals used at the airport.