Note: This article is an update to the article, “PFAS: A Contaminant of Emerging Importance,” by Edward Witte and Stevin George, published in this blog on Dec. 20, 2018. This article was previously published by Godfrey & Kahn and is used here with permission.
Arthur J. Harrington, U.W. 1975, is a shareholder with Godfrey Kahn in Milwaukee, where he has extensive experience in litigation relating to environmental and energy legal matters.
Edward Witte, Vermont 1989, is a shareholder with Godfrey Kahn in Milwaukee, where he focuses his practice on environmental matters across Wisconsin, nationally, and globally.
On Thursday, May 24, 2019, Wisconsin Senators Dave Hansen (D-Green Bay) and Mark Miller (D-Monona) introduced legislation (LRB-2297/2) which, if enacted, could have significant impacts on the State of Wisconsin’s regulation of per- and polyfluoroalkyl substances, otherwise known as PFAS.
By extension, the proposed legislation could significantly affect the regulated community, including municipalities and local government units, publicly owned treatment works, parties holding air and wastewater discharge permits, and many others.
The Proposed Legislation
The proposed legislation includes the following features by statutory amendments:
Requires the Wisconsin Department of Natural Resources (WDNR) to determine, initially, if an emission standard is needed for protection of public health and welfare related to PFAS and, if such a determination is made, requires the WDNR to consider all PFAS to be air contaminants and to require reporting of any emissions of PFAS (i.e., a reporting level of zero pounds per year).
Requires WDNR, following a recommendation by the Department of Health for a Wisconsin Administrative Code NR 140 Enforcement Standard (ES) for PFAS, to use such number as the interim ES and as the interim Maximum Contaminant Level (MCL) for public water systems and water suppliers, and to use a standard that is 20% of the ES as the Preventative Action Limit (or PAL).
Allows the WDNR to require persons who possess or control PFAS to provide proof of financial responsibility for remediation and long-term care to address potential remediation caused by PFAS
Allows for budgeting for (a) sampling and testing leachate and groundwater at landfills for PFAS, (b) creating a model to assist in identifying and prioritizing sites with “likely” PFAS contamination, (c) conducting a survey local and state emergency responders regarding the use of firefighting foam containing PFAS, (d) the administration and enforcement related to PFAS, and (e) investigating for PFAS and for providing alternate drinking water supply for persons if no responsible party is available.
As “Emergency Rules”1
Requires the WDNR to establish and enforce acceptable levels and standards, performance standards, monitoring requirements and required response actions for any PFAS in drinking water, groundwater, surface water, air, solid waste, beds of navigable waters, and soil and sediment, if the department determines that the substances may be harmful to human health or the environment.
Requires WDNR to add PFAS to the list of groundwater contaminants under Stat. section 160.05.
Requires WDNR to include PFAS in wastewater discharge toxic and pretreatment effluent standards under Stat. section 283.21.
Requires WDNR to characterize PFAS as a hazardous waste under Stat. section 291.05.
Requires WDNR to establish criteria for certifying laboratories to test for PFAS and to certify laboratories that meet these criteria.
These rules must cover, at a minimum, PFOA and PFOS, as well as PFHxS, PFNA, PFBS, and PFHpA compounds.
These are just a few of the substantive requirements contained in this bill relating to PFAS. The Bill provides that the rules would remain in effect until the earlier of July 1, 2022, or until permanent rules take effect.
View the LRB document.
Godfrey & Kahn’s Environmental Practice Group is closely following the national and state attention to and development of regulations related to PFAS. For further information, find other articles under Updates, News & Presentations on the Godfrey & Kahn website.
For further information concerning this alert, contact Arthur J. Harrington or Edward B. Witte at Godfrey & Kahn. Note that:
Harrington will be a member of a panel concerning “PFAS – Municipal Legal Planning for Emerging Contaminants” at the League of Wisconsin Municipalities Municipal Attorneys Institute in Fontana on June 14, 2019; and
Witte will be a presenter on the CLE session, “Emerging Contaminants/PFAS: Regulation and Response,” at The State Bar of Wisconsin Annual Meeting & Conference in Green Bay on June 13,
1 Significantly, the legislation provides that the WDNR is not required to provide evidence that promulgating a rule “as an emergency rule” (i) is necessary “for the preservation of public peace, health, safety, or welfare” and (ii) is not required to provide a finding of emergency for a rule promulgated under this subsection.