Publication

April 22, 2021Client Alert

Wisconsin Governor Introduces Revamped and Expanded PFAS “CLEAR” Legislation

Yesterday, April 21, 2021, Wisconsin Gov. Tony Evers and Democratic lawmakers introduced a substantially revised version of Evers’ Chemical Level Enforcement and Remediation (CLEAR) Act, a far-reaching legislative proposal addressing environmental impacts of ubiquitous per- and poly-fluoroalkyl (PFAS) compounds. Though the proposal faces more than slim odds of passage in the Republican-controlled Legislature, its content provides insight into the Evers Administration’s continuing approach to PFAS.

Interim Groundwater and Drinking Water Standards for Six PFAS

The legislation would require the Wisconsin Department of Natural Resources (WDNR or the Department) to apply 20 parts per trillion (ppt) for six combined PFAS as an interim groundwater enforcement standard (ES) and drinking water maximum contaminant level (MCL), until such time as groundwater and drinking water standards are promulgated as emergency rules. Those six PFAS are perfluorooctanoic acid (PFOA), perfluorooctane sulfonic acid (PFOS), perfluorooctane sulfonamide (FOSA), N-ethyl perfluorooctane sulfonamido ethanol (NEtFOSE), N-ethyl perfluorooctane sulfonamide (NEtFOSA), and N-ethyl perfluorooctane sulfonamido acetic acid (NEtFOSAA). The legislation also directs the Department to apply an interim groundwater preventive action limit (PAL) equal to 20 percent of the interim ES, or 4 ppt.

Additionally, public water systems and water suppliers are required to monitor for the six PFAS listed and any other PFAS for which the Department of Health Services has established an enforcement standard (ES) and to utilize granular activated carbon, powdered activated carbon, ion exchange resins, or reverse osmosis as an interim best treatment technology. WDNR’s safe drinking water loan program must also consider PFAS contamination in prioritizing projects.

Fire-Fighting Foams

The bill codifies in statute several provisions of WDNR’s emergency rule governing fire-fighting foams that was partially suspended by the Joint Committee for the Review of Administrative Rules (JCRAR), including establishing treatment “action levels” for 14 PFAS.

Air Emissions Standards

Beginning 12 months after the effective date of the legislation, WDNR is required to establish air emissions standards for any PFAS for which the Department of Health Services has recommended a groundwater enforcement standard. WDNR is also required to consider these PFAS air contaminants for purposes of emissions reporting and reporting is required.

Food Packaging

The legislation prohibits the distribution or sale of any “food packaging or products contained in food packaging that contains intentionally added PFAS” beginning January 25, 2025. The bill does not provide further detail on this prohibition.

Other Proposals

  • Financial Assurance. The legislation would authorize WDNR to require a person who possesses or controls PFAS, or who causes the discharge of PFAS, to provide proof of financial responsibility for remediation and long-term care to address contamination by a potential discharge of PFAS or environmental pollution that may be caused by a discharge of PFAS. The WDNR would be able to require this financial assurance if it was deemed necessary to protect human health or the environment and additional rulemaking would outline the financial assurance procedures. This would not apply to municipalities, fire departments or fire districts, water or wastewater utilities, agricultural producers, or the state.
  • Lab Certification. The bill requires WDNR to promulgate emergency rules establishing criteria for certifying laboratories to test for PFAS, including standards and methods for such testing.
  • Generator Information. The legislation would amend the state’s Spill Law to require generators of hazardous or solid waste at a facility or site under investigation by WDNR to provide the Department with access to information relating to any transportation to or treatment, storage, or disposal at another site, facility, or location.
  • Exemption from the REINS Act. The REINS Act requires legislative approval of administrative rules where the economic impact analysis shows implementation or compliance costs of $10 million or more. The CLEAR Act would exempt WDNR rules “establishing acceptable levels and standards, performance standards, monitoring requirements, and required response actions” for any PFAS in the environment.
  • Grant Programs. The legislation creates a municipal grant program to assist municipalities in investigating PFAS impacts, disposing of PFAS-containing fire-fighting foams, sampling private water supplies, providing emergency water supplies, or conducting remedial actions to address PFAS in the environment. The legislation also creates a grant program to assist counties in providing private well testing for PFAS, nitrates, bacteria, and lead.
  • Alternate Water Supply Mediation. The legislation authorizes WDNR to appoint a mediator to assist in certain negotiations relating to the provision of an alternate source of water to address PFAS-impacted private water supplies.

PFAS “Action Fund”

The legislation establishes a trust fund to accept WDNR’s portion of funds received “under settlement agreements or orders in settlement of action or proposed actions” for violating state environmental statutes or the federal Superfund law and resulting in environmental contamination from PFAS. The funds may be used “to carry out the purposes for which they are received.”

This proposal follows the January 2021 announcement from Governor Evers and Attorney General Kaul that the state was beginning the selection process for an outside law firm to evaluate and pursue litigation against parties that “engaged in the manufacture, processing, testing, distribution, use, or disposal” of PFAS or PFAS containing products. This approach seems to follow actions in other states, including Michigan, Ohio, New Hampshire and Vermont, whereby state lawsuits have generated a settlement fund that can be used to pay for PFAS-related investigation and remediation within the state. The “Request for Qualifications” released this January seeks assistance in pursuing “nuisance, tort, or other common-law-based claims” against these parties. Now, this bill creates a fund for settlement monies generated by this effort to be received.

To implement the bill, the legislation calls for an additional 12.0 full-time equivalent positions at WDNR to implement various PFAS initiatives and the December 2020 PFAS Action Plan, as well as funding for sampling and testing of public water supplies, finding for testing rivers and wastewater treatment facilities, and addressing PFAS contamination at sites and facilities for which the state has assumed responsibility.

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