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 a preliminary public hearing and comment period on three scope statements proposing to regulate PFAS chemicals. The hearing on all three scope statements occurred on Nov. 12, 2019. Written comments are due Nov. 19.

After the comment period, the DNR Board can approve the scope statements. DNR plans to ask the board for approval in January 2020. Once the board approves the scope statements, DNR can begin work on drafting the rules and economic impact analyses.

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). 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). 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). 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.

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.

Legislation: Several bills addressing PFAS are circulating in the Wisconsin Legislature.

SB 310/AB 323 Rep. John Nygren (R-Marinette) & Sen. Rob Cowles (R-Green Bay)
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).

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)
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.

The Wisconsin Legislative Council has released a high-level issue brief on PFAS.

Wisconsin Democrats have included preventing PFAS contamination in their Forward Together agenda.

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.

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.

In Congress, the issue of PFAS is working its way through committees in various capacities.

On July 30, Wisconsin Attorney General Josh Kaul joined 21 other state attorneys general in urging Congress to regulate PFAS. On Sept. 18, Wisconsin Gov. Tony Evers joined 14 other governors in asking congressional armed services committees to include several PFAS provisions in the National Defense Authorization Act.

EPA Releases Draft Interim PFAS Recommendations May 1, 2019
EPA announces PFAS plan  February 14, 2019
EPA won’t regulate PFAS  February 5, 2019