In December and January, the Wisconsin Department of Natural Resources (DNR) is hosting public hearing and comment periods for three rules regulating the allowable levels of certain PFAS (per- and polyfluoroalkyl substances) and other compounds in surface water (NR 105), groundwater (NR 140), and drinking water (NR 809). DNR plans to present its final proposed regulations for all three rulemakings to the Natural Resources Board (NRB) at the board’s February meeting. NRB consists of members of the public appointed by the governor to oversee DNR and environmental policy in Wisconsin.
If a majority of NRB members vote to approve the rules, they will head to the Legislature for review by the appropriate standing committee in each house and then the Joint Committee for Review of Administrative Rules (JCRAR). The standing committees have 30 days to review the rule and can extend the review for several reasons. During their review period, committees have the option to waive their jurisdiction, approve the rule, or object to the rule. If a committee objects to the rule, the committee in the other house must cease action on the rule (unless the action is to also object to the rule). After the standing committees approval, the rules then go to JCRAR. JCRAR can either allow the rules to go into effect or vote to suspend the rules in part or in their entirety.
At this time, the Legislature is not expected to remain in session far enough into 2022 to give both the standing committees and JCRAR time to complete its review. If the Legislature adjourns before the review period ends, the rules will be held up until the Legislature returns in 2023.
The scope statement for each of the three PFAS rules expires in March. That means that if NRB were to reject one of the proposed rules, DNR would have to give up on the rule or start over. The scope statement is the first step in the administrative rulemaking process in Wisconsin. It lays out what the agency intends to accomplish with a new regulation and explains why the agency has the authority to regulate. Once the statement is approved by the governor, an agency has a limited window to complete the rulemaking.
Below is a summary of the actions NRB could take on each rule:
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Approve If NRB approves the rule, the rule will head to the Governor for approval and then to the Legislature for review, first by the appropriate standing committees and then by the Joint Committee for Review of Administrative Rules (JCRAR).
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Reject
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Revise While unlikely, NRB could ask DNR to modify the rules, however the timeline for this is extremely tight. The scope statements for these rules expire in March 2022, requiring the agency to start the process over.
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The Legislature may adjourn before their review period ends; in that case, the time for the rule review will not progress until the Legislature reconvenes, likely January 2023.
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Trade groups representing manufacturers, paper companies, and other industries that use large amounts of water or make regular discharges have filed comments opposing many aspects of the rules. Associations representing municipalities and local water and wastewater utilities have also registered their concerns with some of the rules.
Many trade groups have argued that because the U.S. Environmental Protection Agency (EPA) has started its own rulemakings related to PFAS, and has already issued a recommendation for allowable levels of certain PFAS in groundwater, the state does not need to establish its own standards. Under Wisconsin law, DNR needs to have a compelling reason to set a different state environmental standard for a compound once a federal number is in place.
For more coverage of PFAS and other environmental issues in Wisconsin, visit the environment section of the Hamilton Consulting Group blog, as well as our PFAS issue update page.