PFAS

PFAS (per- and polyfluoroalkyl substances) are manufactured chemicals that are found in many everyday products, including nonstick pans, cleaning products, paints, and firefighting foam. PFAS are present in the bloodstream of 98 percent of Americans. Competing studies debate whether or not PFAS have negative health effects, and, if they do, at what level they are harmful. The federal Environmental Protection Agency has declined to regulate PFAS in drinking water. Meanwhile, some states are choosing to implement regulations independently. Hamilton Consulting closely monitors regulatory developments related to PFAS both at the state and federal level. Click on the links below for more information on PFAS regulations.

 

State Regulations

Regulatory: DHS has announced a recommended groundwater standard of 20 ppt combined for PFOA and PFOS. The recommendation now must go through the DNR rulemaking process before it is enforceable. DHS also recommends that the NR140 Groundwater Quality Public Health Preventive Action Limit for PFOA and PFOS be set at 10% of the enforcement standard “because PFOA and PFOS have been shown to have carcinogenic, teratogenic, and interactive effects.” At just 2 ppt, the Preventive Action Limit would be the strictest PFAS standard in the world.

The DNR board has approved three scope statements under which DNR will write rules to regulate PFAS chemicals. Read comments on the scope statements here. 

Scope statements are the first step in the rulemaking process, which DNR estimates takes about 30 months. The scope statements would:

  1. Adopt groundwater standards. (SS 090-19, NR 140). Under this scope statement, DNR would promulgate the Department of Health Services standards recommendations of 20 parts per trillion (ppt) combined for PFOA and PFOS and a 2 ppt Preventive Action Limit. This rule would apply to all regulated facilities that may impact groundwater.
    Economic impact: DNR estimates a “moderate to significant” economic impact, ranging from $50,000 to greater than $5 million. However, other estimates of future business liability for PFAS have ranged in the billions.
    Public hearings: DNR expects public hearings to occur in November 2020.
  2. Adopt surface water quality standards for PFAS. (SS 091-19, NR 105). Under the scope statement, DNR could also change Wisconsin Pollution Discharge Elimination System (WPDES) permit implementation procedures related to PFAS chemicals, including additional monitoring and new effluent limitations. Currently, DNR can address PFAS discharges in WPDES permits on a case-by-case basis. The proposed rule would set a uniform standard and procedures.
    Economic impact: DNR anticipates the economic impact to “sources of PFOS and/or PFOA…to be significant,” citing costs associated with treatment technology.
    Public hearings: DNR expects public hearings to occur in August 2021.
  3. Adopt maximum contaminant levels (MCLs) for drinking water. (SS 089-19, NR 809). MCLs for drinking water would mostly affect municipal water systems.
    Economic impact: DNR estimates the economic impact of the rule to be “significant.” Treatment could cost municipal public water systems at least $25 million.
    Public hearings: DNR expects public hearings to occur in August 2021.

With the scope statements approved, DNR can begin work on drafting the rules and economic impact analyses.

DNR Stakeholder Meeting on PFAS Rules

 

DNR has already asked municipal wastewater treatment plants to test water flowing in and out of facilities for PFAS.

DNR is also convening a PFAS technical advisory group, meeting on a quarterly basis starting in February 2019.

In accordance with Executive Order 40, Wisconsin state agencies have convened the Wisconsin PFAS Action Council.

Wisconsin PFAS Action Council (WisPAC) Advisory Groups Meet

 

Legislation: Several bills addressing PFAS have been introduced in the Wisconsin Legislature.

Assembly Amendment 2 to SB 559 Rep. Rob Swearingen (R-Rhinelander)
The amendment directs a UW System study on PFAS, directs DNR to test municipal water systems and private wells for PFOS and PFOA and provide clean drinking water in affected areas, directs DNR to recoup payments for testing, investigation, and clean water from responsible parties who have used firefighting foam, and directs DNR to set lab certification standards.

SB 772 & SB 773/AB 843 & AB 842 Rep. John Nygren (R-Marinette) & Sen. Dave Hansen (D-Green Bay)
Similar to the CLEAR Act, the bill would give the Department of Natural Resources (DNR) extremely broad authority to establish and enforce various PFAS standards. A coalition of industry groups are opposing the legislation: Wisconsin Manufacturers & Commerce testimony. Wisconsin Civil Justice Council testimony. Water Quality Coalition memo.

SB 774 and SB 775  Sen. Rob Cowles (R-Green Bay)
The bill would allow DNR to regulate PFAS in “PFAS management zones” that have water testing above 70 ppt. This bill would not set statewide standards for PFAS chemicals.

SB 310/AB 323 Rep. John Nygren (R-Marinette) & Sen. Rob Cowles (R-Green Bay) – Signed Into Law
The bill would prohibit the use of fire fighting foams that contain intentionally added PFAS in training, unless the testing facility has appropriate containment and treatment measures (as determined by Department of Natural Resources (DNR) rule). DNR has begun rulemaking to implement these provisions (Scope Statement 015-20).

SB 302/AB 321 Sen. Mark Miller (D-Monona), Sen. Dave Hansen (D-Green Bay), Rep. Chris Taylor (D-Madison), Rep. Stausch Gruszynski (D-Green Bay) & Rep. Melissa Sargent (D-Madison)
Known as the “CLEAR ACT,” the bill would 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. The bill also provides that DNR may require entities possessing PFAS to provide proof of financial responsibility for remediation of potential discharge. Additionally, the bill requires any facility under investigation by DNR to provide DNR with access to information related to transportation of hazardous waste to any other site. The bill provides 7.5 positions at DNR and 2 positions at DHS, plus $150,000 for identifying and prioritizing PFAS sources, $50,000 for a study on use of fire fighting foam containing PFAS, $87,000 for testing landfills and leachate, and $120,000 for investigation of PFAS sources and providing drinking water.

SB 717/AB 792 Rep. Timothy Ramthun (R-Campbellsport) and others
The bill 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.

AB 952 Rep. Staush Gruszynski (D-Green Bay)
This bill 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.

Budget: The state budget included two positions for PFAS and other emerging contaminants research at DNR. The budget also included $150,000 GPR to develop a model to identify and prioritize sites with likely PFAS contamination and $50,000 to conduct a survey on emergency response use of PFAS-containing firefighting foam.

PFAS Update: Status of PFAS Legislation, Agency Council Meets, EPA Action February 21, 2020
PFAS Update: Regulations Moving in Legislature & DNR January 27, 2020
PFAS Update: AG Holds Listening Session in Marinette, Foam Bill Passes Committee December 20, 2019
PFAS Update: WI Agency Advisory Council Meets, EPA Action December 9, 2019
DNR Holds Public Hearing on PFAS Scope Statements November 13, 2019
PFAS Update: DNR Board Votes on Scope Statements, Agency Water Recommendations October 25, 2019
PFAS Update: Evers EO, DNR Scope Statements, Hearing on Fire Fighting Foam Bill September 16, 2019
Water Quality Task Force Meets in Northern Wis. to Discuss PFAS September 16, 2019
PFAS Update: DNR & AG Kaul Actions, Industry Response to DHS Standards August 7, 2019
DHS and DNR Release Strict PFAS Groundwater Standard June 26, 2019
Legislators Circulate Bills Addressing PFAS May 31, 2019
Water Quality Task Force Discusses Agriculture & Groundwater April 5, 2019
Speaker’s Task Force on Water Quality Meets to Hear Agency Testimony March 22, 2019
DNR, citing PFAS, scales back Voluntary Liability Exemption Program January 29, 2019

 

Federal Regulations

The federal Environmental Protection Agency (EPA) has released draft preliminary guidelines for PFOA and PFOS. The interim recommendations follow EPA’s PFAS Action Plan announced earlier this year. EPA is currently seeking comments on an advance notice of proposed rulemaking to add PFAS to the Toxics Release Inventory. EPA decided in February 2020 that it will regulate PFOA and PFOS. EPA has also proposed rules that would exclude manufacturers of PFAS from providing proof of financial responsibility under the federal Superfund cleanup law.

PFAS Update: WI Agency Advisory Council Meets, EPA Action December 9, 2019
EPA Releases Draft Interim PFAS Recommendations May 1, 2019
EPA announces PFAS plan  February 14, 2019
EPA won’t regulate PFAS  February 5, 2019