PFAS have been manufactured and used in a variety of industries since the 1940s. Although there is an ongoing effort to phase out PFAS chemicals, they are still found in many of today’s products, including firefighting foams, coatings, carpeting, paper and packaging. Through this wide-spread use, PFAS — per- and polyfluoroalkyl substances — have the potential to enter the environment and have been detected in Wisconsin in soil, groundwater and surface water bodies.
In May 2019, the Wisconsin governor announced one of the most comprehensive bills in the U.S. to address PFAS. As part of the governor’s Year of Clean Drinking Water initiative, this bill requires the Wisconsin Department of Natural Resources (DNR) to establish acceptable standards, monitoring requirements and response actions for PFAS found in solid waste, drinking water, surface water, soil and sediment.
In August 2019, the governor signed Executive Order No. 40, which directs the DNR to take additional steps to address PFAS in coordination with the state’s Department of Health Services and the Department of Agriculture, Trade and Consumer Protection. These steps include establishing a PFAS Coordinating Council and providing public information sites to inform the public on the matter of PFAS and the risk these chemicals pose to public health and Wisconsin’s natural resources.
Wisconsin’s political and regulatory leaders are in the process of establishing groundwater screening levels for perfluorooctanoic acid (PFOA) and perfluorooctane sulfonate (PFOS), which are expected to be some of the most stringent in the United States. The DNR is in the early phases of its cycle 10 rulemaking, which recommends a PFOS and PFOA enforcement standard of 20 parts per trillion (ppt) and a preventive action limit of 2 ppt. The goal is to have these standards published and in full force by fall 2021.
An enforcement standard of 20 ppt would give the DNR authority to require potentially responsible parties (PRPs) to take actions necessary to protect public health or welfare. The aggressive 2 ppt preventive action limit would require PRPs to notify the DNR of the presence of PFAS and could require mitigation so levels would not reach or exceed the enforcement standard.
Wisconsin’s DNR has also started its cycle 11 rulemaking, which recommends groundwater protection standards be established for 40 new substances, including 34 additional PFAS compounds, provided the adequate toxicity data is available to recommend screening levels. The standards for these compounds are unlikely to be drafted until fall 2020 and may not take effect until fall 2023.
Surface water discharges are also a key focus for Wisconsin’s DNR. The department has also initiated efforts to establish surface water criteria for PFOA, PFOS and other PFAS for the purpose of protecting public health. If established, these standards will require monitoring and upgrades to many surface water management and treatment systems, as well as publicly owned treatment works (POTWs). Legislation is also being considered that would result in the promulgation of new drinking water maximum contaminant levels.
While these groundwater, surface water and drinking water standards are in development, the DNR has also completed several other actions to address PFAS. The DNR formed a PFAS Technical Advisory Group seeking input from key industries and consultants affected by PFAS. The group meets on a quarterly basis to discuss issues and actions related to PFAS. The state also issued letters to 125 POTWs requiring influent and effluent sampling for PFAS. The DNR planned to use data from this sampling effort to identify potential PFAS sources and work with PRPs to reduce or eliminate those sources. However, in response to the DNR’s request to sample for PFAS, the Municipal Water Coalition announced it is in the process of developing screening criteria to identify discharges of PFAS rather than sampling their own influent and effluent.
The DNR also collected surface water and fish tissue samples in a broad effort to assess PFAS impacts in surface water across the state. Three rounds of samples were collected in five bodies of water near known or suspected PFAS-impacted sites. The first round of water samples found elevated PFAS concentrations in smaller, low-flow streams downstream of known impacted sites. The DNR will release the other water and fish tissue sample results as they become available.
The DNR plans to also sample land-applied biosolids to understand how land application may contribute to the distribution of PFAS. Finally, the DNR is working to finalize Wisconsin-specific laboratory method criteria to certify laboratories for analysis of PFAS in aqueous (nonpotable water) and nonaqueous matrices.
While these actions represent Wisconsin’s commitment to establishing enforcement limits for certain PFAS, the DNR has indicated that it currently possesses the authority to regulate PFAS under current rules and regulations. Enforcement under these regulations may take different forms and could include directives to investigate and mitigate PFAS releases or include PFAS in Wisconsin Pollutant Discharge Elimination System permits.
If an organization is among certain at-risk entities, it may be wise to act now to reduce risk before the DNR mandates action by PRPs. Some at-risk entities and processes include:
- Department of Defense
- Industrial and manufacturing
- Oil and gas
- Aviation and transportation
- Municipal water and wastewater
- Fire suppression, training and response using aqueous film forming foam (AFFF)
- Leather tanning
- Electronics manufacturing
- Metal plating
As Wisconsin continues down its early path toward PFAS regulations, industries are challenged with uncertainty as rules and regulations evolve. Impacted industries seeking to manage risks related to PFAS can partner with a consultant who can deliver the right care, attention and planning in addressing these compounds.
Potentially responsible parties seeking to manage risks related to PFAS can improve their position by taking proactive steps to meet state and federal regulations.