On Feb. 23, 2022, the Natural Resources Board (NRB) of the Wisconsin Department of Natural Resources (DNR) is set to vote on whether to allow per- and polyfluoroalkyl substances (PFAS) to be regulated statewide in groundwater, surface water and included as water quality criteria in wastewater permits. While a Jefferson County Circuit Court recently decided DNR has authority to test for PFAS from any wastewater permitted facility, a significant missing piece to regulate certain PFAS in Wisconsin will be addressed in these proposed rules.
The February 2022 NRB meeting agenda includes three proposed rules concerning two of the most-studied PFAS analytes: perfluorooctanesulfonic acid (PFOS) and perfluorooctanoic acid (PFOA):
- Groundwater quality standards: DNR draft rule DG-15-19 proposes numerical standards to minimize the concentration of polluting substances in groundwater under Wis. Admin. Code chapter NR 140 based on recommendations from the toxicologists from the Wisconsin Department of Health Services. This proposes setting an enforcement standard (ES) of 20 parts per trillion (ppt) and preventative action limit (PAL) of 2 ppt for PFOA and PFOS individually and as combined values.
- Drinking water standards: DNR draft rule DG-24-19 proposes setting the highest level of a contaminant that is allowed in drinking water, also known as maximum contaminant levels (MCLs) for PFOA and PFOS under Wis. Admin. Code chapter NR 809. The proposed MCL is 20 ppt for PFOA and PFOS individually and as combined values.
- Surface water quality criteria: DNR draft rule WY-23-19 proposes revisions to chapters NR 105, 106 and 219 to add values or limits as well as accepted analytical methods to address PFOA and PFOS in the Wisconsin Pollutant Discharge Elimination System (WPDES) permitting program. The proposed surface water threshold for PFOS is 8 ppt. The proposed threshold for PFOA in surface waters that are used as public water supplies is 22 ppt. The proposed threshold for PFOA in all other surface waters is 95 ppt.
Additional contaminants concerning brownfields redevelopment
While the proposed rules regarding PFAS is the main attraction, stakeholders in brownfields redevelopment should also follow the proposed changes to chapter NR 140 for other analytes commonly found at contaminated properties. DNR rule DG-15-19 also adds an ES for Hexavalent chromium at 70 ng/L, increases the ES for Tetrachloroethylene (PCE) to 20 ug/L, lowers the ES for Trichloroethylene (TCE) to 0.5 ug/L and lowers the ES for 1,4-Dioxane to 0.35 ug/L. PCE and TCE are industrial solvents and commonly found in groundwater contamination.
Environmental rulemaking in Wisconsin: First hurdle is NRB approval
DNR has been working on these proposed rules since October 2019 after NRB approved the scope statement for each rule. Therefore, the DNR has until April 2022 until their respective scope statements expire. The NRB may decide to approve or reject these rule proposals concerning PFAS. Rejected rules are no longer considered for adoption and a new scope statement must be drafted (restarting the thirty-month rule drafting process). When NRB approves a rule, the proposed rule is sent to Governor Evers for approval under Wis. Stat. § 227.185 and then to the Legislature under Wis. Stat. § 227.19 for final approval and promulgation into Administrative Code.
Environmental rulemaking in Wisconsin: Larger obstacles ahead
Even if NRB and Governor Evers approve the rules, the Legislature’s Joint Committee for Review of Administrative Rules (JCRAR) may convene a public hearing and vote to indefinitely suspend rulemaking using powers created by 2017 Wisconsin Act 57 known as the Wisconsin Regulations from the Executive in Need of Scrutiny Act (REINS Act). The REINS Act also created the ability for JCRAR to contract with a third party to prepare an independent economic impact analysis (EIA) after approval from NRB. If JCRAR finds either the EIA prepared by DNR as part of rulemaking or the third-party EIA results in implementation and compliance costs that exceed $10 million over a two-year period for businesses, local governments and individuals, they may suspend the rule. Such suspension may only be lifted if the Legislature independently passes a law authorizing the rule or if DNR modifies the rule and subsequent EIA rendering it under the $10 million threshold. DNR will not have opportunity to revise the EIA for any of these proposed rules before the expiration of the scope statements in April 2022.
Federal regulations of PFAS are imminent
The proposed Wisconsin administrative rules, if approved and promulgated, would see Wisconsin addressing certain PFAS only slightly ahead of the slow-moving federal response. In March 2022, the United States Environmental Protection Agency (EPA) intends to designate PFOA and PFOS as a “hazardous substance” under the Comprehensive Environmental Response, Compensation & Liability Act (CERCLA) in a draft rule with a final rule expected Summer 2023. The EPA roadmap states they also intend to introduce a proposed drinking water MCL for PFOS and PFOA by fall 2022 and a final MCL by fall 2023. The current EPA drinking water regulation is a recommended, non-enforceable, lifetime health-based advisory level of 70 ppt for PFOA and PFOS.
For more information on this topic, or to learn how Godfrey & Kahn can help, contact a member of our Environmental Strategies Practice Group.