PFAS Update: Status of PFAS Legislation, Agency Council Meets, EPA Action

PFAS Legislation – New Provisions Passed Assembly, Final Status of Other Bills

 In what is likely the last Assembly floor session of 2019-20, the Assembly passed provisions to address PFAS contamination in Wisconsin. As an amendment tacked on to SB 559 (an unrelated bill), the Assembly passed on a party line vote language that:

  • Directs the UW System to perform a study and report to the Legislature on PFAS effects in the human body, drinking water and groundwater.
  • Directs DNR to test private wells and municipal water systems for PFOA and PFOS in places around the state that have detected PFAS, investigate PFAS in those areas, and provide clean drinking water to residents affected.
  • Directs DNR to recoup payments for testing, investigation, and clean water from responsible parties who have used firefighting foam containing PFAS.
  • Directs DNR to set lab certification standards.

The legislation now must be approved by the Senate, which meets in March for its last floor votes of the session.

The Assembly did not take up alternative legislation (AB 843 & AB 842) that would give the Department of Natural Resources (DNR) extremely broad authority to establish and enforce various PFAS standards. A coalition of industry groups opposed those bills.

Other legislation on PFAS introduced this session included:

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. Signed into law on Feb. 5 as Act 101

SB 774 & SB 775/AB 922 & AB 921, authored by Sen. Rob Cowles (R-Green Bay) and Rep. Joel Kitchens (R-Sturgeon Bay), would allow DNR to regulate PFAS and provide funding for residents and municipalities in targeted “PFAS management zones” that have water testing above 70 ppt. This bill would not set statewide standards for PFAS chemicals. – Senate Committee on Natural Resources & Energy held a public hearing on the bill on Feb. 7 but did not vote on the bill. With the Assembly likely adjourned for the session, the bill is likely dead.

SB 717/AB 792, which provides $250,000 for the Department of Trade, Agriculture & Consumer Protection (DATCP) to administer, with DNR, a voluntary program to collect and store or dispose of firefighting foam containing PFAS. This bill was introduced by the Speaker’s Task Force on Water Quality. – Passed the Assembly unanimously on Feb. 18. Senate Committee on Natural Resources & Energy voted unanimously to recommend passage on Feb. 5, but it is unclear if the Senate will take up the bill in its final floor session in March.

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. While it is unlikely that the CLEAR Act provisions as written will pass in the Republican-majority Legislature, the Nygren/Hansen bill discussed above likely will contain some of the same provisions. – No action.

LRB 4148, which would require DNR to determine whether a safer alternative exists for PFAS in food packaging. If DNR determines there is a safer alternative, no person can manufacture, sell or distribute food packaging containing PFAS. – Rep. Staush Gruszynski is circulating the bill for cosponsorship.

 

WisPAC Subgroup Meetings

 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 has convened two sub-advisory groups:

  1. Local Government group headed by
    -Lawrie Kobza, who represents Municipal Environmental Group (MEG) – Water Division.
    -Paul Kent, who represents MEG – Wastewater Division.
    -John Dickerson, Department of Revenue Division Administrator for State & Local Finance
  2. Citizens group, which will include industry and stakeholder groups, headed by
    -Lynn Morgan, who represents Waste Management.
    -Ned Witte, an attorney from Milwaukee who has worked with DNR in their Brownfield Study Group and represents municipalities in environmental cleanup cases.
    -A representative from the Department of Health Services.

The sub-advisory groups met on Feb. 12 to take initial comments from the public and stakeholders. WisPAC held an additional public listening session in Fond du Lac on Feb. 18.

The full WisPAC committee of state agency representatives met on Feb. 20. At the meeting, the leaders of the sub-advisory groups briefed WisPAC on some ideas they heard in their Feb. 12 listening sessions. Ideas included:

  • Potential bans of PFAS products and examining the necessity of PFAS in products
  • Encouraging local governments to buy products without PFAS
  • Requiring labeling of products containing PFAS
  • Regulation of additional PFAS compounds
  • Providing best practices on use and remediation of PFAS
  • More research and funding
  • Working to resolve uncertainty for development
  • Increasing and emphasizing community engagement and risk communication
  • Requiring industry to sample for PFAS

Agency members of WisPAC then listed their ideas for recommendations to potentially be included in the Action Plan due in July:

  • Department of Health Services: Quicker response in areas with contamination, research partnerships, health equity.
  • Department of Revenue: Funding, whether from the state legislature or working with the Department of Justice to recoup funding from industry.
  • Department of Public Instruction: Sharing informational materials with schools.
  • Department of Corrections: Creating a searchable map of PFAS testing results
  • State Lab of Hygiene: Working on more accurate, cheaper test methods and educating other entities on reliable test methods.
  • Department of Trade, Agriculture & Consumer Protection: Accurately explaining risk level to citizens based on sampling results.
  • University of Wisconsin: Addressing the high cost of testing, providing funding for state level research grants.
  • Department of Trade, Agriculture & Consumer Protection: Prioritizing how to use funding in the clean sweep program (provided AB 792 passes in the Senate).
  • Public Service Commission: Tracking municipal water data, providing education and outreach to municipal water systems on PFAS free products, testing water bottled in the state.
  • Department of Transportation: Identifying primary areas of concern, educating the construction industry.
  • Wisconsin Economic Development Corporation: Proving outreach to the business community, incentivizing private companies to develop and clean up.
  • Department of Natural Resources: Going beyond the firefighting foam bill recently enacted as Act 101 to ban all PFAS-containing foams if Federal Aviation Administration regulations change. Additionally, identifying sources, setting standards, conducting more research, developing data on economic impacts, and finding sustainable funding. DNR mentioned they will recommend provisions of AB 843 & AB 842 that were not adopted by the Legislature. DNR noted throughout the meeting that the state and local entities should examine whether products they are buying contain PFAS.

After the Feb. 20 meeting, DNR will hold sub-advisory group meetings again on March 5. The full WisPAC will meet next on March 19.

 

DNR Rulemaking – First Stakeholder Meeting Held

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.

DNR held a Stakeholder Group on all three proposed rules on Feb. 6. At the meeting, DNR gave an overview of the three scope statements and took public comments. The Stakeholder Group will meet again in March for a more in-depth discussion of the rules.

 

EPA Action

The federal Environmental Protection Agency (EPA) announced this week it will regulate PFAS. The decision to regulate is the beginning of a multiple-year period for EPA to determine and finalize a maximum contaminant level for drinking water. EPA proposed regulatory determinations for PFOA and PFOS.

EPA also recently issued a proposed rule that would exclude manufacturers of PFAS from providing proof of financial responsibility under the federal Superfund cleanup law.

Currently, EPA has issued a nonenforceable health advisory standard of 70 parts per trillion.

 

For more information on PFAS developments in Wisconsin, visit /pfas/.

 

 

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