PFAS Update: State Rules Move Forward; New EPA Health Advisories; Judge Stays Ruling

Legislature Will Allow PFAS Rules to Take Effect This Year

Rules regulating certain PFAS (per- and polyfluoroalkyl substances) in drinking and surface water, developed by the Wisconsin Department of Natural Resources (DNR), could go into effect as soon as next month, with large public water systems required to begin testing for the compounds as early as November.

A spokesman for Sen. Steve Nass (R-Whitewater), co-chair of the Joint Committee for Review of Administrative Rules (JCRAR), stated that the committee would not object to the rules. As part of the rulemaking process, JCRAR has the power to review and modify a new state agency regulation before it is finalized. DNR Secretary Preston Cole is expected to sign off on the PFAS rules, which will go into effect one month after the agency publishes them in the Wisconsin Administrative Register.

At a meeting in February, the Natural Resources Board that oversees DNR voted on three PFAS rules proposed by DNR. The board approved DNR’s surface water rule, raised the minimum standards of its drinking water rule, and rejected the agency’s proposed groundwater rule. We covered that meeting in detail here.

EPA Issues Health Advisory Levels for Four PFAS

The U.S. Environmental Protection Agency (EPA) announced on June 15 that it was issuing drinking water health advisories for four PFAS. According to the EPA, the agency’s health advisories “identify the concentration of chemicals in drinking water at or below which adverse health effects are not anticipated to occur.” Health advisories are not administrative rules or enforceable regulatory standards.

The agency issued new interim advisories for two compounds, replacing previous advisory levels set by the agency in 2016:

  • Perfluorooctanoic acid (PFOA): 0.004 parts per trillion (ppt)
  • Perfluorooctanesulfonic acid (PFOS): 0.02 ppt

The agency also issued final health advisories for two other PFAS compounds:

  • Perfluorobutane sulfonic acid and its potassium salt (PFBS): 2,000 ppt
  • Hexafluoropropylene oxide (HFPO) dimer acid and its ammonium salt (known as “GenX” chemicals): 10 ppt

GenX chemicals and PFBS have been used as replacements for PFOA and PFOS, respectively.

The EPA plans to propose a federal drinking water rule by the end of 2022 and to finalize it by the end of the following year. The rule will regulate PFOA and PFOS and may address other PFAS compounds. According to the agency, “The proposal will include both a non-enforceable Maximum Contaminant Level Goal (MCLG) and an enforceable standard, or Maximum Contaminant Level (MCL) or Treatment Technique.” Once the EPA finalizes a federal drinking water rule, it will supersede any state standards that are less strict.

State Judge Stays PFAS Ruling

A state judge has agreed to stay the effects of a ruling against DNR in a case involving PFAS while the department appeals his decision. For the time being, DNR will be able to continue requiring property owners to remediate PFAS contamination under the state’s “Spills Law,” which regulates the discharge of hazardous substances. DNR also believes the judge’s decision would prevent the agency from providing bottled water to communities with drinking wells affected by PFAS.

In April, Judge Bohren ruled against DNR in a lawsuit brought by dry cleaning company Leather-Rich and Wisconsin Manufacturers & Commerce (WMC), the state’s chamber of commerce and largest business lobby. We covered the lawsuit and Judge Bohren’s decision here. Judge Bohren ruled that DNR cannot force property owners to clean up PFAS under two Spills Law programs without first promulgating a defined list of hazardous substances as an administrative rule.

What are PFAS?

PFAS are a family of thousands of manufactured chemicals that are found in many everyday items, including nonstick cookware, food packaging, cleaning products, paints, and firefighting foam. PFAS are present in the bloodstream of 98 percent of Americans. Competing studies debate whether PFAS have negative health effects and, if they do, at what levels they are harmful.

To learn more about this issue, be sure to visit Hamilton’s PFAS Issue Update page.