Regulation of PFAS chemicals continues to develop in the Wisconsin Legislature and state agencies. Last week the Legislature passed a bill regulating PFAS-containing firefighting foams. Meanwhile, the Department of Natural Resources (DNR) proposed rulemaking has been approved by the DNR Board.

PFAS (per- and polyfluoroalkyl substances) are man-made chemicals found in many everyday products, including nonstick pans, cleaning products, paints, and firefighting foam. The most extensively studied PFAS compounds are PFOA and PFOS, which have been phased out of domestic manufacturing over the past decade. Competing studies debate whether or not these chemicals have negative health effects and, if they do, at what level they are harmful.

 

DNR Rulemaking

The Wisconsin Department of Natural Resources (DNR) Board voted on Jan. 22 to approve three scope statements under which DNR can regulate PFAS chemicals. (Read about the scope statements here.) Industry groups had asked DNR to narrow the scope statements to regulate just PFOA and PFOS chemicals, but the Board-approved scope statements will still give DNR the ability to promulgate regulations on any chemicals in the broad “PFAS” class.

Approval of the scope statements now allows DNR to move forward with the rulemaking process. Next, DNR will draft rule text and prepare an economic impact analysis. Under Wisconsin’s rulemaking statutes, DNR cannot promulgate a rule with an economic impact analysis over $10 million without legislative approval.

 

Legislation

Both the Senate and Assembly recently voted on a bipartisan basis to pass AB 323/SB 310, which would prohibit the use of firefighting foams that contain intentionally added PFAS in training, unless the testing facility has appropriate containment and treatment measures. The bill now heads to the governor’s desk for signature.

Supporters of the bill include American Chemistry Council, American Petroleum Institute, Wisconsin Manufacturers & Commerce, Wisconsin Paper Council, and Wisconsin Rural Water Association.

In addition to the firefighting foam bill, movement is possible on SB 302/AB 321, also known as the “CLEAR Act,” which would circumvent current rulemaking processes and give DNR broad, unprecedented authority to regulate PFAS chemicals. Gov. Evers included the CLEAR Act in his list of “Legislative Homework,” his priorities for the Legislature to pass before adjourning the 2019-20 session.

 

Wisconsin PFAS Advisory Council (WisPAC)

In accordance with Executive Order 40, issued by Gov. Tony Evers in August 2019, Wisconsin state agencies have convened the Wisconsin PFAS Action Council (WisPAC). The executive order directs the council to develop an action plan, develop public education protocols, identify sources, develop treatment protocols, collaborate with academic institutions on research, and explore avenues for funding. The action plan is due to the governor and legislature by July 1.

WisPAC convened earlier this month for its second meeting. (Read about the first meeting.) The bulk of the meeting was dedicated to determining the organizational structure of the council. Modeled after a similar council in Connecticut, WisPAC will make recommendations under four proposed focus areas:

1. Preventing future discharges and exposures.
2. Inventory and minimization of current PFAS exposures
3. Identifying and addressing historic or legacy PFAS discharges and exposures.
4. Educating and communicating about the risks associated with PFAS.

Throughout the process, WisPAC will also convene two sub-advisory groups: one on local government and a second citizen group, which will include industry and stakeholder groups. The advisory groups will meet in February, March, and April. WisPAC will also send out a survey to the general public to solicit feedback on PFAS.

DNR also plans to send out a separate survey to each member of WisPAC to solicit recommendations for consideration in the action plan.

After the council discussed logistics, the Department of Health Services gave a presentation on the potential human health effects from PFAS exposure. Then, a scientist gave a technical presentation on PFAS in precipitation. Finally, DNR updated the council on the survey on PFAS-containing firefighting foam it plans to send to fire departments this month.

The council took public comments before adjourning.

The next WisPAC meeting is scheduled for Feb. 20.

 

Governor’s Clean Drinking Water Report

 DNR, at the request of Gov. Evers, recently released a Year of Clean Drinking Water report. (Gov. Evers had declared 2019 the Year of Clean Drinking Water.) Regarding PFAS, the report highlights several “accomplishments”:

• Funding in the 2019-21 state budget for PFAS research.
• DNR’s creation of procedures for when a public water system or private well exceeds the federal health advisory level for PFOA and PFOS (70 parts per trillion).
• Public meetings on PFAS held across the state.
• The PFAS Coordinating Council, created by Executive Order #40.
• DNR’s public Technical Advisory Group.
• DNR’s statewide PFAS monitoring projects.

According to the report, going forward DNR is working on:

• Coordinating with other states on PFAS regulatory approaches.
• Rulemaking (discussed above).
• PFAS sampling procedures.
• Continued PFAS monitoring and research.
• Source reduction strategies and/or limitations for Wisconsin Pollutant Discharge Elimination System permitholders.
• Addressing PFAS contamination from biosolids.
• Working with other agencies to develop a communications plan.
• Exploring funding for PFAS efforts.

 

Water Quality Task Force Bills

On the same day the governor released his report, the Speaker’s Task Force on Water Quality released their bipartisan report and recommendations after holding public hearings throughout the state over the summer. In addition to his own report, Gov. Evers endorsed the Speaker’s Water Quality Task Force bills.

The report proposes 13 new bills related to water quality, including SB 717/AB 792 which provides $250,000 for the Department of Trade, Agriculture & Consumer Protection to administer, with DNR, a voluntary program to collect and store or dispose of firefighting foam containing PFAS.

The report also recommends support for AB 323/SB 310, the firefighting foam bill that passed the Legislature this week.

 

EPA Action

The federal Environmental Protection Agency (EPA) has added 160 PFAS chemicals to the Toxic Release Inventory (TRI). The TRI is a list of chemicals that EPA requires industry to gather data and report on. The new PFAS chemicals, including PFOA and PFOS, have been added to the list effective Jan. 1.

EPA solicited comments on adding PFAS to the TRI in November. The list was added to the TRI following the enactment of the 2020 National Defense Authorization Act (NDAA) in December.