December 23, 2020Client Alert

Wisconsin DNR Releases Action Plan to Address PFAS Contamination

On December 16, 2020, the Wisconsin PFAS Action Council (WisPAC) released the PFAS Action Plan addressing PFAS contamination in Wisconsin communities. The council, made up of representatives from nearly twenty state agencies, was convened by Governor Evers in 2019 to lead statewide efforts to address growing concerns of PFAS contamination. In preparing this Action Plan, the Council considered a broad range of information and feedback from advisory groups, state agencies, and the general public.

The development of the PFAS Action Plan was guided by a set of four principles:  Environmental Justice, Health Equity, Innovation, and Pollution Prevention. The PFAS Action Plan includes twenty-five recommended actions organized into eight themes: Standard Setting, Sampling, Pollution Prevention, Engagement, Education and Communication, Research and Knowledge, Phase Out, Future Investments, and Identify and Address Historic Discharges. Each recommendation includes a list of general resources that may be necessary to implement each action item, including financial, staffing, and legislative needs. Identified recommendations include:

  • Standard setting by developing recommendations for management of PFAS-containing landfill leachate;
  • Increasing sampling by standardizing PFAS sampling methods and support statewide implementation;
  • Increasing testing of public water systems for PFAS;
  • Pollution prevention by developing and applying Best Management Practices (BMPs) for proper handling of PFAS-containing waste;
  • Expanding PFAS research and knowledge by collaborating with the University of Wisconsin System and state agencies to share and discuss the results of PFAS-related research conducted within and outside the State of Wisconsin, and discuss how these results should be applied within the state;
  • Phasing out PFAS contamination by developing and supporting product stewardship mechanisms to reduce PFAS use, and minimizing the State’s purchase of PFAS-containing products;
  • Improving efficiency in development of long-term water supply solutions; and
  • Developing new tools to address PFAS-contaminated sites.

PFAS are a group of human-made chemicals used for their water- and stain-resistant qualities in various products including fast food wrappers, non-stick cookware, and certain types of firefighting foam. PFAS are highly persistent in the environment, leading some to dub them “forever chemicals.”

Gov. Evers’ Administration says the Action Plan is intended to “serve as a roadmap for the state in its efforts to address PFAS contamination.” The full Action Plan can be found here.

The release of the PFAS Action Plan follows several PFAS-related developments in recent months:

  • Groundwater Quality Standards. The Wisconsin Department of Natural Resources (WDNR) continues to pursue the establishment of groundwater quality standards for various PFAS. In Wisconsin, ch. NR 140 groundwater standards are reviewed and adopted in “cycles.” WDNR periodically submits a list of substances to the Wisconsin Department of Health Services for review and recommendations for new or revised groundwater standards. The Cycle 10 recommendations released last year included recommended standards for two PFAS: PFOS and PFOA. The proposed Enforcement Standard (“ES”) for combined PFOA and PFOS is 20 ng/L (parts per trillion) and the proposed preventive action limit (“PAL) is 2 ng/L. The Cycle 11 recommendations released on November 6, 2020 include several other PFAS. The rulemaking process to establish standards is ongoing, but WDNR does not expect rulemaking for the Cycle 10 standards to conclude until Summer 2022. WDNR anticipates the Cycle 11 rulemaking will not conclude until Fall 2023.
  • Firefighting Foams. 2019 Wisconsin Act 101 was enacted in February 2020 and created s. 299.48, Wis. Stats. The law became effective on September 1, 2020 and, among other things, prohibits the use of Class B and Class A/B firefighting foams that contain intentionally added PFAS, except for when used as part of an emergency firefighting or fire prevention operation, or when used for testing purposes at a testing facility that has implemented appropriate measures to prevent discharges of the foam to the environment. Discharging foam into a sanitary or storm sewer is prohibited.

Act 101 authorized WDNR to promulgate emergency administrative rules to implement s. 299.48, Wis. Stats., “including to determine appropriate containment, treatment, and disposal or storage measures” for firefighting foam testing. In late October, the Natural Resources Board approved an emergency rule implementing Act 101. That emergency rule took effect on December 4, 2020, and portions of the emergency rule were suspended by the Legislature’s Joint Committee for Review of Administrative Rules (JCRAR) last Friday, December 18.

  • Site Investigation and Remediation. In August 2020, the Wisconsin Department of Natural Resources (WDNR) Remediation and Redevelopment Program sent over 3,000 letters to parties responsible for clean up at open environmental remediation sites in Wisconsin, reminding them of WDNR’s legal position that emerging contaminants, including per- and polyfluoroalkyl substances (PFAS) and 1,4-dioxane, must be assessed as part of the NR 700 regulatory process. WDNR wrote that responsible parties “should assess emerging contaminants and their potential impacts as early in the cleanup process as possible, preferably during the site investigation phase.” This result follows from WDNR’s previous conclusion that PFAS constitute “hazardous substances” and/or “environmental pollution,” for which it has authority to require remedial actions under Chapter 292, Wis. Stats.

The environmental team at Michael Best has experience advising clients on regulatory response to PFAS impacts and will continue to monitor PFAS regulatory developments. If you have any questions or concerns about how PFAS may impact your facility, please contact your Michael Best attorney or any of the authors listed here. 

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