Yesterday, the Wisconsin Natural Resources Board (NRB) acted on three rule proposals that would establish groundwater, drinking water and surface water quality standards for PFOA and PFOS, two long-chain per- or poly-fluoroalkyl substances (PFAS). As discussed in greater detail below, the Board voted to advance a rule establishing surface water quality criteria for PFOA and PFOS, modified the proposed drinking water quality standards for PFOA and PFOS (changing the proposed standard from 20 ppt to 70 ppt combined PFOA and PFOS), and deadlocked on NR 140 groundwater standards.

First, on a tie vote (3-3, with one board member abstaining) the NRB declined to advance the “Cycle 10” NR 140 groundwater standards. This rule proposed establishing 25 new or revised groundwater quality standards, including an enforcement standard (ES) for combined PFOA and PFOS of 20 parts per trillion (ppt) and a preventive action limit (PAL) of 2 ppt. In addition to PFOA and PFOS, the rule included new standards for several agricultural chemicals and their breakdown products, including a groundwater standard for glyphosate (the active ingredient in the herbicide Round Up) as well as imidacloprid (an insecticide). The Cycle 10 package also proposed a reduction in the standard for trichloroethylene (TCE), a volatile organic compound.

Second, the Board voted to advance state drinking water quality standards (state Maximum Contaminant Levels, or MCLs) for PFOA and PFOS. However, the Board did not approve the individual and combined standard of 20 ppt that was proposed by the Department of Natural Resources (WDNR), instead opting for a 70 ppt standard proposed via amendment during the meeting. The 70 ppt standard is consistent with EPA’s current Lifetime Health Advisory Levels for PFOA and PFOS.

Finally, the Board unanimously advanced a rule to establish surface water quality criteria for PFOA and PFOS. For PFOS, the proposed rule establishes a standard of 8 ppt in all surface waters. For PFOA, the proposed rule establishes a standard of 20 ppt for surface waters designated for use as public water supplies and 95 ppt for all other surface waters.

The surface water quality criteria rule also includes requirements related to sampling and analytical methods. If reductions in PFOA or PFOS in wastewater effluent are required, facilities will have up to 85 months to engage in source-reduction efforts. If those efforts do not produce sufficient reductions and treatment is ultimately required to comply with new standards, a facility may be granted a compliance schedule to implement necessary controls. WDNR predicts that source reduction will be sufficient in most cases, with “only a couple” of facilities requiring treatment.

The drinking water and surface water rules now head to Governor Tony Evers. If approved by the Governor, the rules would advance to the Wisconsin Legislature for review.

The rejected NR 140 groundwater standard rule will not move forward and will likely be headed back to WDNR’s drawing board. This is because the statement of scope authorizing this rulemaking expires March 3, 2022. This means that WDNR will need to re-start the rulemaking process, which pursuant to Wisconsin law must take no more than 30 months from publication of scope statement to legislative review.

Michael Best will continue to track rulemaking and other PFAS regulatory efforts in Wisconsin and beyond. The environmental team at Michael Best has experience advising clients on PFAS-related issues. If you have any questions or concerns about how WDNR’s proposed PFAS rules may impact your facility, please contact your Michael Best attorney or any of the authors listed here.