Client Alert

PFAS: NRB kills groundwater rule, amends the drinking water standard and approves surface water standards

On Feb. 23, 2022, the Natural Resources Board (NRB) of the Wisconsin Department of Natural Resources (DNR) voted on three proposed rules to allow per- and polyfluoroalkyl substances (PFAS) to be regulated statewide in groundwater, surface water and included as water quality criteria in wastewater permits for the two of the most-studied PFAS analytes: perfluorooctanesulfonic acid (PFOS) and perfluorooctanoic acid (PFOA):

• Groundwater quality standards: DNR draft rule DG-15-19 proposed 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.
  • NRB Decision: Vote fails 3-4. An amendment to amend the standards to 70 ppt failed 3-3 with one member abstaining. The proposed ES and PAL values are now dead due to scope expiring spring 2022.
• Drinking water standards: DNR draft rule DG-24-19 proposed maximum contaminant levels (MCLs) for PFOA and PFOS under Wis. Admin. Code chapter NR 809. The proposed MCL was 20 ppt for PFOA and PFOS individually and as combined values.
  • NRB Decision: An amendment to change the proposed MCL from 20 to 70 ppt passed 4-3. A full vote on the amended rule passed 6-1. Amended rule passed.
• Surface water quality criteria: DNR draft rule WY-23-19 proposed surface water threshold for PFOS at 8 ppt; PFOA in surface waters that are used as public water supplies at 22 ppt; PFOA in all other surface waters is 95 ppt.
  • NRB Decision: The rule unanimously passed.

Fallout from this meeting:

• No changes to NR 140 that will create enforceable values for PFOA and PFOS in groundwater for potable wells.
• No changes to NR 140 adjusting existing values to Tetrachloroethylene (PCE), Trichloroethylene (TCE) and 1,4-Dioxane, also addressed today by the NRB.
• Responsible parties conducting Brownfields redevelopment and site assessment activities may continue to utilize site specific clean-up criteria for groundwater based on the Department of Health recommended value of 20 ppt for PFOA and PFOS.
• The enforceable MCLs for PFOA and PFOS in drinking water are now proposed at 70 ppt.
• Wastewater permitholders must meet end of pipe surface water quality criteria thresholds for PFOA and PFOS after implementing flexible compliance plans with their users.
• NRB leadership adopted rules that supported surface water values of 8 ppt coming out of wastewater treatment plants but did not support drinking water and groundwater values of 20 ppt for being too low and costly to meet.

The approved drinking water rule and surface water quality criteria rule are now routed to the Governor and then review by the Legislature’s Joint Committee for Review of Administrative Rules (JCRAR) before they become effective.

For more information on this topic, or to learn how Godfrey & Kahn can help, contact a member of our Environmental Strategies Practice Group.