PFAS

Rule Number: WY-23-19

Status: Scope statement approved in August 2019; DNR is currently drafting the proposed rule. Draft economic impact analysis (EIA) is expected in early 2021.

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

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.

Rule Number: DG-15-19

Cycle 10

Status: Scope statement approved in August 2019; DNR is drafting the proposed rule. Draft economic impact analysis (EIA) is expected in early 2021.

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

Summary: Under this scope statement, DNR would promulgate 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.

Cycle 11

Status: In November 2020, DHS sent groundwater quality standards recommendations to DNR for 22 substances, including 12 PFAS, as part of Cycle 11. DNR will now start the rulemaking process. The Statement of Scope is expected in November/December 2020.

Rule Number: DG-24-19

Status: Scope statement approved in August 2019; DNR is drafting the proposed rule. Draft economic impact analysis (EIA) is expected in early 2021.

Scope Statement: SS 089-19 was approved by the governor in August 2019.

Summary: Revisions to chapter NR 809 related to the promulgation of new drinking water maximum contaminant levels (MCLs) for PFAS including PFOS and PFOA. These new MCLs would mostly affect municipal water systems.

The Wisconsin Legislature convened in January 2021 for the 2021-22 legislative session. Bills relating to PFAS will be added throughout the session. 

Status: AB 13 introduced and referred to Committee on State Affairs (Jan. 25, 2021); SB 34 referred to Committee on Labor and Regulatory Reform (Jan. 28, 2021)

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

Status: Introduced and referred to Joint Committee on Finance (Feb. 16, 2021)

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.

As the budget process continues, these provisions may be changed or removed, and other provisions related to PFAS could be added.

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

• The U.S. Environmental Protection Agency (EPA) decided in February 2020 that it will regulate PFOA and PFOS. On January 14, 2021, the agency issued an Advance Notice of Proposed Rulemaking seeking public comment on its plans to regulate PFOA and PFOS in the environment.
• The EPA released its PFAS Action Plan in February 2019 and issued a Program Update to the plan in February 2020.
• The EPA has also proposed rules that would exclude manufacturers of PFAS from providing proof of financial responsibility under the federal Superfund cleanup law.

• EPA PFAS website
• EPA Actions to Address PFAS
• Interim Guidance on Destroying and Disposing of Certain PFAS and PFAS-Containing Materials That Are Not Consumer Products (December 2020)
• Interim Strategy for Per- and Polyfluoroalkyl Substances in Federally Issued National Pollutant Discharge Elimination System Permits (November 2020)
• Interim Recommendations for Addressing Groundwater Contaminated with PFOA and PFOS (December 2019)