PFAS Update: Legislators Reintroducing CLEAR Act; DNR Releases Economic Impact Analysis for Cycle 10 Groundwater Rule

A group of Democratic state legislators backed by Wisconsin’s governor are reintroducing legislation called the Chemical Level Enforcement and Remediation or “CLEAR” Act. The bill includes a variety of provisions to regulate per- and polyfluoroalkyl substances, a family of thousands of manufactured chemicals commonly known as PFAS. In addition to legislative efforts regarding PFAS, the Department of Natural Resources (DNR) is currently drafting rules to regulate PFAS in surface, drinking, and groundwater in Wisconsin.

At a press conference held on April 21, Governor Tony Evers (D), Senator Melissa Agard (D-Madison) and Representative Samba Baldeh (D-Madison) announced their plans to reintroduce the CLEAR Act, which died during the 2019-20 session without receiving a public hearing and was opposed by a broad coalition of industry groups. Other legislative cosponsors of the bill include Senator Brad Pfaff (D-La Crosse) and Representatives Jill Billings (D-La Crosse) and Steve Doyle (D-Onalaska).

The bill includes the following provisions:

  • Establish new environmental standards and enforcement mechanisms for PFAS
  • Fund new positions at DNR to implement a PFAS action plan
  • Create a PFAS municipal grant program for testing and remediation
  • Fund statewide monitoring and testing initiatives
  • Create a program to collect and dispose of firefighting foam that contains PFAS

Some of these provisions and similar or related policies were included in Gov. Evers’ 2021-23 executive budget. However, the Legislature has already removed some of those provisions from the budget and is expected to remove or modify the rest before returning the bill to the governor’s desk.

DNR Releases Draft Analysis of Proposed Cycle 10 Groundwater Rule

On May 14, DNR released a draft economic impact analysis (EIA) for a proposed rule affecting all regulated facilities that may impact groundwater. With this rulemaking, numbered DG-15-19, DNR proposes amending Chapter NR 140 of the Wisconsin Administrative Code by promulgating new groundwater standards.

DNR’s proposed rule would codify standards recommended by the Department of Health Services (DHS) in the health agency’s Cycle 10 study. As part of Cycle 10, DHS developed recommended groundwater standards for 27 substances, including two PFAS: perfluorooctanoic acid (PFOA) and perfluorooctane sulfonate (PFOS). DNR’s rule would set a combined groundwater standard for PFOA and PFOS at 20 parts per trillion (ppt), with a preventive action limit (PAL) of two ppt.

According to the agency’s draft EIA for DG-15-19, “implementation and compliance costs could include additional monitoring and investigation costs associated with new or revised standards. In cases where a facility, practice or activity attains or exceeds new or revised standards, the agency regulating the facility, practice or activity would require response actions to address both source control and any necessary remediation of contaminated groundwater.”

The draft EIA prepared by DNR estimates the total cost of implementing and complying with the rule will be between $175,000 to $5 million annually. The agency claims that the quantifiable cost of the rule is $175,000, mainly because of testing for PFAS. However, according to the EIA, “The department anticipates that the compliance cost of this rule may be higher than [$175,000], but any required compliance response action would be site-specific and highly variable.” Because of this, DNR says it is unable to make a reasonable assessment of the rule’s total cost, and that it will reassess its estimate following the public comment period for its preliminary EIA.

Members of the public can submit comments on the agency’s draft EIA from now until June 13, 2021. Comments can be emailed to the following address:

Check out Hamilton’s PFAS issue page for more information.