The Wisconsin Water Quality Coalition recently submitted a letter and comments to the Wisconsin Department of Health Services (DHS) in response to recommended strict groundwater standards for two PFAS chemicals, PFOA and PFOS. If promulgated as an enforceable rule, the standards would be costly to Wisconsin industry and would open up the state for frivolous lawsuits.
In addition to the DHS recommended standards, the Department of Natural Resources (DNR) is beginning PFAS investigations at municipal wastewater treatment plants. Wisconsin Attorney General Josh Kaul also took action on PFAS recently, joining 21 other state attorneys general in urging Congress to regulate PFAS contamination.
What are PFAS?
PFOA and PFOS are the most extensively produced and studied of a class of chemicals referred to as PFAS (per- and polyfluoroalkyl substance), which are found in many everyday products, including nonstick pans, cleaning products, paints, and firefighting foam. Existing best available science does not establish adverse health effects to humans from PFOA and PFOS exposure at current levels.
DHS Proposed Standards
DHS, along with the Department of Natural Resources (DNR) and Department of Trade, Agriculture & Consumer Protection, announced in June a recommended groundwater standard of 20 parts per trillion (ppt) combined for PFOA and PFOS. The recommendation of 20 ppt is significantly below the federal Environmental Protection Agency’s (EPA) health advisory standard of 70 ppt. EPA also recently released a draft interim guideline for groundwater standards of 70 ppt.
Wisconsin law requires DHS to use EPA values for health standards if they are available, unless there is scientifically valid technical information that was not considered when the federal value was established (Wis. Stat. § 160.13(2)(b)). However, other studies show little effect on human health from PFOA and PFOS, even at much higher exposure levels than 20 ppt. Out of 19 other states regulating PFAS, only Vermont has set a standard as strict as the one proposed by Wisconsin’s DHS. New Jersey has an interim recommendation of 10 ppt.
DHS also recommends that the preventive action limit for PFOA and PFOS be set at 10 percent of the enforcement standard in accordance with Wis. Stat. § 160.15(1)(c). At 2 ppt, the preventive action limit would be the most strict regulation on PFOA and PFOS in the world. Preventive action limits are initial regulatory limits used to inform DNR about potential groundwater contamination and minimize the level of substances “to the extent technically and economically feasible” to prevent further contamination.
Costs imposed on the regulated community by these recommended standards could be significant. With no evidence of adverse human health effects resulting from PFOA and PFOS exposure, the recommended standards would not provide public health protections and instead would impose significant, unnecessary costs on Wisconsin businesses.
DHS held a comment period on the guidance documents related to these recommendations for just one day earlier this month. Under the Ch. 227.112 guidance documents requirements created in the 2018 extraordinary session legislation, comment periods must be 21 days, unless the governor approves a shorter period. In this case, the governor approved just a one day comment period on the PFOA and PFOS standards.
The DHS recommendations now must go through the DNR rulemaking process, with more opportunities for public input, before they are enforceable. DNR has not yet released a scope statement to begin promulgating the rules.
DNR is already investigating PFAS compounds across the state and recently announced a voluntary testing program. DNR sent letters on July 22 asking 125 municipal wastewater treatment plants to test water flowing in and out of facilities for PFAS. The release states that those municipalities were selected as “more likely to receive wastewater from businesses that knowingly or unknowingly use PFAS.” According to DNR, the data will be used in the rulemaking process and associated economic impact analyses for PFAS standards. DNR administrator of the division of environmental management told the Milwaukee Journal Sentinel this week that testing will become mandatory for wastewater systems when they renew their permits.
Wisconsin Attorney General Josh Kaul recently joined 21 other state attorneys general in urging Congress to regulate PFAS. The letter sent to Congressional leadership on July 30 asks Congress to:
- Designate PFAS as hazardous substances under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) and direct EPA to further investigate compounds beyond just PFOA and PFOS. Adding PFAS compounds as hazardous substances would allow EPA to enforce reporting and cleanup.
- Add the entire class of PFAS to the EPA’s Toxic Release Inventory and require industry reporting at a “very low level.”
- Direct the U.S. Geological Survey to conduct nationwide sampling of PFAS and human health effects.
- Provide funding for public water systems to address PFAS cleanup.
- Prohibit the use and storage of firefighting foam containing PFAS at military bases.
- Provide medical screening for those potentially affected by PFAS exposure.