On May 23, 2019, Wisconsin Governor Tony Evers and Wisconsin Department of Natural Resources (WDNR) Secretary Preston Cole proposed far-reaching legislation addressing environmental impacts of ubiquitous per- and poly-fluoroaklyl (PFAS) compounds. Though the proposal is expected to face legislative opposition, its introduction provides insight into the Evers Administration’s approach to emerging contaminants. Referred to as the “CLEAR Act” (“Chemical Level Enforcement and Remediation Act”), if enacted, it would significantly impact a broad range of the state’s manufacturing industries.
Standards and Required Response Actions
The legislation directs WDNR to promulgate emergency rules establishing “acceptable levels and standards, performance standards, monitoring requirements, and required response actions” for any PFAS substance which WDNR determines may be harmful to human health or the environment. WDNR is directed to develop such standards across multiple environmental media—including drinking water, surface waters, groundwater, air, soil and sediment, and the beds of navigable waters.
The bill specifies that the emergency rules must, at minimum, address six specific PFAS substances, including the two most well-known PFAS compounds, perfluorooctanoic acid (PFOA) and perfluorooctane sulfonic acid (PFOS). Significantly, the bill allows WDNR to establish standards—including groundwater quality standards—for individual PFAS substances as well as classes or groups of such substances.
Groundwater Quality Standards
The bill also fast-tracks enforceable groundwater and drinking water quality standards. Under existing law, the Department of Health Services (DHS) recommends groundwater quality standards (known as Enforcement Standards) and drinking water quality standards (known as Maximum Contaminant Levels, or MCLs) that may subsequently be adopted by WDNR through administrative rulemaking.
Under the bill, WDNR is required to apply groundwater quality standards for PFAS substances (or groups or classes of such substances) recommended by DHS as “interim” Enforcement Standards unless or until the WDNR establishes standards by rule. The bill also provides for interim Preventative Action Limits equal to 20 percent of the concentration recommended as an interim Enforcement Standard. Similarly, the bill specifies that DHS recommended MCLs for PFAS substances be applied as “interim” MCLs until WDNR establishes an MCL for that substance, group or class of PFAS compounds.
The bill authorizes WDNR to “administer and enforce” the state’s spill and cleanup law to remediate PFAS substances. WDNR would also be authorized to add PFAS substances to the list of hazardous constituents under the state’s hazardous waste management law. While this move does not transform PFAS into listed or characteristic hazardous waste, it would require generators and hazardous waste treatment, storage and disposal (TSD) facilities to identify waste that may contain PFAS.
As a signal of just how much impact this legislation could have, the bill seeks funding for 7.5 full time WDNR staff positions and 2 full time positions at DHS.
Other Legislative Efforts
Republican legislators have introduced at least two PFAS-related bills in this legislative session:
- Assembly Bill 85/Senate Bill 109 directs DHS to develop state health-based groundwater quality standards for PFOA and PFOS within 90 days of the bill’s enactment.
- Legislation identified as LRB-3306 (no bill number yet assigned) would limit the use of Class B firefighting foams containing “intentionally added” PFAS.
Meanwhile, WDNR is not waiting for legislative action to move forward with regulating PFAS compounds. The agency has taken the position that, when discharged to the environment, PFAS compounds meet the state’s definition of a hazardous substance and/or environmental pollution subject to regulation and additional notification, investigation and remediation obligations. The agency continues to host PFAS Technical Advisory Group meetings, with the next meeting occurring on May 31, 2019 in Madison.
Through its network of 13 offices across the United States, Michael Best is monitoring PFAS developments closely and will continue to provide timely updates. To discuss how PFAS and other emerging contaminants of concern may impact your business, contact a Michael Best attorney listed below.