PFAS Update: DNR Proposes Permanent Foam Rule, Provides Fiscal Analysis

The Wisconsin Department of Natural Resources (DNR) has announced a public hearing and comment period on its proposed final rule related to firefighting foam containing PFAS. The rule is a result of Wisconsin Natural Resources Board (NRB) board order WA-07-20. A public hearing on the rule will take place on November 4, 2021, while written comments are due by November 11. The agency released its fiscal analysis of the proposed rule in early September. DNR encourages individuals who wish to provide spoken comments at the hearing to pre-register via Zoom.

The rule would create Ch. NR 159, Wis. Admin. Code, to implement 2019 Wisconsin Act 101. Act 101 prohibits the use of certain firefighting foams that contain PFAS, except when used in emergencies or when tested at a facility that does not discharge the foam into the environment or into storm or sanitary sewer systems. The proposed final rule is based on an earlier emergency rule developed by DNR. The rule features prohibitions on and requirements for the use of PFAS foam, requires foam users to keep certain records and notify DNR of certain events, and includes other storage, containment, treatment, and disposal requirements for PFAS foam.

DNR’s foam rules have been controversial; in August 2020, the NRB tabled the department’s original emergency foam rule after concerns from industry groups that the draft rule exceeded the department’s statutory authority. Later, the Legislature’s Joint Committee for the Review of Administrative Rules (JCRAR) voted to suspend parts of DNR’s emergency rule, including PFAS action levels set by the rule and a definition of “treatment” requiring such a process “to immobilize, remove or destroy the contaminant.” Republican legislators and industry groups argued that these aspects of the rule constituted an enforceable standard and exceeded the Legislature’s intent.

PFAS regulation has become a key environmental policy issue in Wisconsin. In addition to its firefighting foam rule, DNR is working to regulate PFAS in drinking water, surface water, and groundwater. The department is monitoring about 50 sites in the state for PFAS contamination, including military installations, airports, industrial areas, and waterways in Superior, Marinette, Madison, and Milwaukee. Several PFAS lawsuits are ongoing, and the state recently announced it had hired an outside law firm to litigate against companies responsible for discharging PFAS compounds in Wisconsin. It is not yet clear which companies or sites could be involved in that litigation.

DNR Releases Groundwater Report, Launches “Safe Water” Campaign

In addition to rulemaking, litigation, and site monitoring, DNR has published reports and engaged in public relations efforts related to PFAS. The Groundwater Coordinating Council, managed by DNR, released its 2021 report to the Legislature on August 31. The report highlights three “priority recommendations,” including to “address public health and environmental concerns regarding PFAS,” “implement practices that protect groundwater from nitrate and other agricultural contaminants,” and “evaluate the occurrence of viruses and other pathogens in groundwater and groundwater-sourced waters supplies and develop appropriate response tools.”

The report also includes “ongoing recommendations” such as supporting sustainable groundwater management and continuing to catalogue Wisconsin’s groundwater resources. Additionally, DNR has hosted a series of panel discussions on water issues including PFAS in September and October 2021 as part of its “Safe Water for All” campaign.

Check Hamilton’s PFAS issue page for more information.