The regulation of Perfluorooctanesulfonic acid (PFOS) and Perfluorooctanoic acid (PFOA) in Wisconsin drinking and surface waters advanced during a Feb. 23 meeting of the Wisconsin Natural Resources Board (NRB), while groundwater regulation for these compounds stalled.¹

PFOS and PFOA are part of the group of Per- and Polyfluoroalkyl Substances (PFAS) that were widely used from the 1940s through the early 2000s in numerous consumer products such as nonstick cookware, food packaging, stain resistant coatings, and water repellants. PFAS compounds are known as “forever chemicals” due to their resistance to chemical breakdown.

The proposed rules in front of the NRB at the Feb. 23 meeting included the following:

• DG-15-19 proposes a groundwater Enforcement Standard (ES) of 20 ppt for PFOS and PFOA combined, and a Preventative Action Limit (PAL) of 2 parts per trillion (ppt), also as a combined standard.

• DG-24-19 proposes a Maximum Contaminant Level (MCL) of 20 ppt as a combined standard for PFOS and PFOA. This standard would apply to municipal water systems as well as certain other institutional water providers.

• WY-23-19 proposes the establishment of narrative criteria and thresholds of public health significance of 8 ppt for PFOS and either 20 ppt or 95 ppt for PFOA, depending on whether the subject surface water was a public drinking water supply.²

After hours of public testimony and Board discussion, the NRB rejected the groundwater rule for PFOS and PFOA (DG-15-19). Because the scope statement for this rule expired in early March, the DNR needs to re-scope a rule package if it wishes to continue to pursue the establishment of groundwater standards for PFOS and PFOA.³

The NRB also raised concerns about the proposed MCL of 20 ppt in the drinking water rule (DG-24-19). While the Federal Environmental Protection Agency (EPA) has not yet adopted federal MCLs for PFOS or PFOA, EPA has established a health advisory level (HAL) of 70 ppt for PFOS and PFOA. The NRB indicated a preference to use this HAL rather than the proposed MCL of 20 ppt and, accordingly, revised the proposed standard to 70 ppt. With that revision, the NRB adopted the proposed drinking water rule for PFOS and PFOA.

The NRB adopted as drafted the surface water rule for PFOS and PFOA (WY-23-19).

Both the drinking water rule and surface water rule were signed by Gov. Tony Evers and advanced to the Legislature for review. Both of these rules were referred to the Assembly Committee on Environment and the Senate Committee on Natural Resources and Energy.

The Committee review period has now ended with no action taken, and the Assembly and Senate have referred the rules to the Joint Committee for Review of Administrative Rules (JCRAR) for review. JCRAR can take a number of actions during its 30-day review period, including objecting to these rules in whole or in part, requesting modifications, or approving the rules. If they are approved by JCRAR and published in the Administrative Register, these rules will become effective.

PFAS regulation continues to be a hot button issue both in Wisconsin and at the federal level.⁴ With continued interest from state and federal agencies, the regulated community, and other stakeholders, we are sure to see additional development regarding PFAS regulation in 2022 and beyond.

Endnotes

1 The Feb. 23, 2022, meeting of the Wisconsin Natural Resources Natural Resources Board can be viewed​ ​ on the DNR's media website.

2 These proposed rules and related documents can be found on the DNR's website. It is important to note that the rule packages discussed above relate only to PFOS and PFOA. However, two other rule packages have been scoped that would regulate additional PFAS compounds in drinking water and groundwater. DG-31-20 would establish new drinking water maximum contaminant levels for 12 additional PFAS and combined standards for four additional PFAS compounds. DG-25-20 would establish standards for Cycle 11 compounds including additional PFAS compounds. SeeWisconsin DNR Proposed Permanent Administrative Rules.

3See Wis. Stat. section 227.135(5), providing that a rule must go from scope statement publication to legislative review within 30 months.

4 In addition to federal legislative proposals to regulate PFAS, the EPA has released a “PFAS Strategic Roadmap” that lays out an agency-wide approach to addressing PFAS. SeePFAS Strategic Roadmap, on the EPA's website.

This article was originally published on the State Bar of Wisconsin’s Environmental Law Section Blog. Visit the State Bar sections or the Environmental Law Section webpages to learn more about the benefits of section membership.