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November 14, 2019Client Alert

Wisconsin Announces Multi-Agency Coordinating Council for PFAS, Begins Process for Additional PFAS Rulemaking

Today, the Wisconsin Department of Natural Resources (DNR) began the process of implementing another priority in Governor Evers’ Executive Order #40 by creating the Wisconsin Per- and Polyfluoroalkyl Substances (PFAS) Action Council or “WisPAC.” The Council will be led by DNR and will coordinate PFAS-related activities among state agencies and develop a PFAS plan of action for the state. DNR Secretary Preston Cole began today’s kick-off meeting by emphasizing that DNR has a “responsibility to the public to get this right” and, in order to do so, will be engaging in a public process to solicit input from all interested parties.

WisPAC’s Charge

WisPAC’s Coordinating Council is chaired by DNR Secretary Cole and includes a long list of additional state agencies and related affiliates members – fifteen of them as of now – including the Wisconsin Department of Administration (DOA), Agriculture, Trade and Consumer Protection (DATCP), Children and Families (DCF), Commissioner of Insurance, Corrections (DOC), Health Services (DHS), Military Affairs (DMA), Public Institution (DPI), Public Service Commission of Wisconsin (PSC), Revenue (DOR), Safety and Professional Services (DSPS), State Laboratory of Hygiene (WSLH), Transportation (DOT), Veteran Affairs (WDVA) and the UW System.

As announced, this group will:

  • Create a multi-agency PFAS action plan
  • Develop protocols to inform educate and engage the public
  • Identify likely sources and add to action plan
  • Find best practices for PFAS sources and add to action plan
  • Develop standard, cost-effective and effective testing & treatment protocols with stakeholders
  • Engage academic institutions and other experts
  • Explore funding avenues to assist state & local governments, private parties

The Great Lakes states and providences will have a role as well, as will the U.S. Environmental Protection Agency (EPA). Based on DNR’s comments today, one example where DNR would expect to coordinate with the broader Great Lakes/Region 5 would be in sharing research studies and related experiences and information. Governor Evers chairs the Conference of Great Lakes and St. Lawrence Governors and Premiers and hosted the group this summer in Milwaukee at the 2019 Leadership Summit. One outcome of that conference was a commitment to coordination with and among the Great Lakes states and providences and federal partners to address drinking water contaminants including PFAS.

Public Advisory Work Groups

WisPAC envisions creating a number of “Action Plan Work Groups” and “External Advisory Workgroups” to assist in developing the state’s PFAS action plan. These include DNR’s current PFAS Technical Advisory Workgroup and Rule Advisory Groups, and Advisory Groups focused on Agriculture, Municipal, Local Health Department and External Policy.

What’s Next for WisPAC

DNR is soliciting comments and feedback on WisPAC’s charter and membership and plans to meet again on January 16, 2020. WisPAC expects to convene PFAS Action Plan Implementation Advisory Groups and host the first PFAS Action Plan Listening Sessions in January and February 2020. WisPAC’s plan is to have a final State PFAS Action Plan ready to present to Governor Evers and the State Legislature by June 30, 2020.

PFAS-Focused Rulemaking Underway

In the meantime, DNR recently released three Statements of Scope related to rules being developed by the Department for PFAS – including a drinking water standard, surface water quality standard and groundwater standards. The state’s rulemaking process is lengthy. For example, it will likely be at least two years before the state has legally enforceable groundwater quality standards.

According to the DNR’s Statement of Scope for the drinking water standard, the objective of a proposed rule would establish a Maximum Contaminant Level (MCL) for “certain PFAS” including PFOA and PFOS. According to sampling conducted pursuant to EPA’s Unregulated Contaminant Monitoring Rule 3 (UCMR 3), these two PFAS compounds were identified in the drinking water of several Wisconsin public water systems and it is likely that additional impacts will be found as additional drinking water resources are sampled.

Similarly, the Department’s Statement of Scope for the surface water quality standard would establish permanent rules to create surface water quality numeric criteria for PFOS and POA, “as well as any other PFAS which the Department determines may be harmful to human health” as per the state’s existing regulatory framework. Additional changes include an approved list of test methods for the detection of PFAS in surface waters, wastewater effluent or biosolids, WPDES permit implementation procedures for the new PFAS surface water quality criteria and the development of factors to consider when listing surface waters as impaired for PFAS.

The public comment period on the Statements of Scope will close on November 19th. It is expected that the DNR Board will be asked to approve the Statements of Scope in early 2020, after which time the Department could begin the work necessary to draft proposed rules and related impact analyses.

To discuss how PFAS and other emerging contaminants of concern may impact your business, contact a Michael Best attorney listed below.

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