PFAS Update: JCRAR Suspends DNR’s Foam Rule; Tyco Settles Lawsuit with Peshtigo Residents

Since the last edition of Tidbits, there have been several updates on the PFAS front. On December 18, the Department of Natural Resource’s (DNR) emergency rule on firefighting foam was partially suspended by the Legislature’s Joint Committee for the Review of Administrative Rules (JCRAR).

The emergency rule is a result of 2019 Wisconsin Act 101, legislation that regulates firefighting foam containing PFAS. Act 101 went into effect on September 1st. The act gave the DNR the authority to promulgate rules to implement and administer the act. It also required the DNR to promulgate emergency rules no later than September 1, 2020, to coincide with the bill’s implementation date, but this was delayed due to concerns that the draft emergency rule exceeded the legislative intent and statutory authority under Act 101.

The JCRAR’s December 18 public hearing on the firefighting foam emergency rule included testimony from the DNR and concerned industry groups. Immediately following the hearing the committee passed a motion suspending various aspects of the 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. The motion passed 6-4 along party lines.

This suspension of the emergency rule came only a few weeks after it went into effect on December 4. The rule remains in effect without the suspended language. Under Wisconsin’s emergency rules statute, as described in this Legislative Council memo, if JCRAR suspends a rule or part of a rule, it must, within 30 days introduce a bill in each house to repeal the suspended rule. If the bill does not pass, the rule remains in effect and if the rule is repealed, it may not be promulgated again by the agency unless a subsequent law specifically authorizes such action.

On a separate but related track, DNR is still in the process of collecting information to develop an economic impact analysis (EIA) for each of the three proposed permanent PFAS rules for drinking water, surface water, and groundwater. The department is expected to release the draft EIAs in early 2021.

Companies Settle PFAS Lawsuit with Peshtigo

Last week, three companies (Tyco Fire Products, Chemguard, and ChemDesign) 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 paying for a new water line to provide clean drinking water to area residents, and the company will soon submit a plan to DNR for remediating the contamination. Last May, 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).

Be sure to bookmark Hamilton’s PFAS issue page for the latest information.