In addition to last month’s comment period on the Wisconsin Department of Natural Resources (DNR) initial scope statements seeking to regulate PFAS, Wisconsin and federal agencies are continuing to progress toward regulation of these substances. At the state level, Gov. Tony Evers has convened a multi-agency advisory council to address PFAS. At the federal level, the Environmental Protection Agency (EPA) is seeking public comment on proposed rulemaking.

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.

Wisconsin PFAS Action Council (WisPAC)

In accordance with Executive Order 40, issued by Gov. Tony Evers in August, 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.

WisPAC met for the first time on Nov. 14. After a brief introduction from DNR Secretary Preston Cole, DNR staff gave an introductory presentation on PFAS chemicals and Wisconsin’s response so far. Then, each agency represented on the council overviewed their experience with PFAS to date:

• Department of Trade, Agriculture & Consumer Protection had concerns about PFAS in food products, land application, and groundwater monitoring.
• Department of Veterans Affairs was concerned about exposure of people living near military sites.
• Department of Justice couldn’t comment on ongoing investigations but stated the attorney general’s serious interest in the subject.
• Department of Transportation discussed the issues of contaminants in soil and water moved during projects and potential use of products containing PFAS.
• Department of Revenue noted the issue of municipal funding to address PFAS.
• Public Service Commission’s concern was the effect remediation efforts would have on water rates.
• Department of Corrections expressed concerns about water quality for people under the department’s care. Department of Public Instruction and Department of Children & Families shared similar concerns.
• Department of Safety & Professional Services acts as a liaison with fire services who potentially have used PFAS-containing firefighting foams.
• Office of the Commissioner of Insurance noted concerns about the availability of insurance for PFAS remediation. The OCI representative mentioned the state could see “asbestos-level settlements” in future PFAS cases.

Next on the agenda, DNR gave an overview of the executive order and presented a draft charter for the council. DNR also shared how it envisions the future operations of WisPAC. DNR plans to have several workgroups within and outside of WisPAC to inform the council as it works to draft a PFAS Action Plan for the legislature and governor by June 2020.

The next WisPAC meeting will be Jan. 16, 2020.

Wisconsin Rulemaking

With the preliminary public comment period on DNR’s scope statements closed, the DNR Board can approve the scope statements as currently drafted or amend the scope statements. It is expected that DNR will not amend the scope statements and that the board will approve them in January 2020. Once the board approves the scope statements, DNR can begin work on drafting the rules and economic impact analyses before sending the rule to the Legislature for review. At the Nov. 12 hearing, DNR estimated rules would be finalized and enforceable by 2022.

Wisconsin Legislation

The Assembly Committee on Environment plans to vote on Dec. 11 on AB 323, 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. DNR would determine containment and treatment measures by rule. The Assembly Committee on Environment held a public hearing on the bill on Sept. 3.

Authored by Rep. John Nygren (R-Marinette) & Sen. Rob Cowles (R-Green Bay), the bill has mostly Republican cosponsors but also includes Rep. Melissa Sargent (D-Madison), whose district includes a well in Madison that has tested positive for PFAS. Other supporters of the bill include American Chemistry Council, American Petroleum Institute, Wisconsin Manufacturers & Commerce, Wisconsin Paper Council, and Wisconsin Rural Water Association.

Meanwhile, Wisconsin Democrats have introduced a separate bill that would circumvent rulemaking processes and require DNR to establish and enforce PFAS standards by rule for drinking water, groundwater, surface water, air, solid waste, beds of navigable waters, and soil and sediment if DNR deems it harmful to human health or the environment. SB 302/AB 321, also known as the “CLEAR Act,” has not yet received a hearing.

EPA Proposed Rulemaking

At the federal level, EPA is seeking public comment on proposed rulemaking to add PFAS chemicals to the Toxics Release Inventory (TRI). EPA released an Advance Notice of Proposed Rulemaking on Nov. 25 to add PFAS to this list of chemicals that EPA requires industry to gather data and report on. The proposed rulemaking is part of EPA’s PFAS Action Plan, released in February.

According to EPA, the purpose of the advance notice of proposed rulemaking is to gather public input on whether information is available to fulfill the TRI chemical listing criteria and the extent of the usefulness of data that would be gathered under TRI. After the comment period, EPA will determine whether it will proceed with adding PFAS to the TRI. If EPA proceeds, it will publish a proposed rule with an additional comment period.