LRB-5352/1
MCP&ZDW:skw/amn/wlj
2023 - 2024 LEGISLATURE
April 11, 2024 - Introduced by Senators Pfaff,
Agard, Carpenter, Hesselbein, L.
Johnson, Larson, Roys, Smith, Spreitzer and Wirch, cosponsored by
Representatives Baldeh, Billings, Palmeri, C. Anderson, J. Anderson,
Andraca, Bare, Conley, Considine, Emerson, Hong, Joers, Neubauer,
Moore Omokunde, Ohnstad, Ratcliff, Shelton, Sinicki, Stubbs, Subeck and
Madison. Referred to Committee on Natural Resources and Energy.
SB1104,1,10
1An Act to renumber and amend 160.07 (5);
to amend 20.370 (4) (ps), 227.137
2(5), 227.19 (7), 281.61 (6) and 292.31 (1) (d) (intro.); and
to create 20.370 (6) (af),
320.370 (6) (cs), 20.370 (6) (et), 92.14 (18), 160.07 (5) (b), 160.15 (4), 227.135 (6),
4227.136 (8), 227.138 (3), 227.139 (5), 227.26 (5), 281.17 (8) (c), 281.73, 281.79,
5283.31 (4) (g), 283.31 (4) (h), 292.31 (1) (d) 1m., 292.31 (11), 292.66, 292.67,
6292.74, 299.485 and 299.487 of the statutes;
relating to: regulating and
7addressing PFAS, extending the time limit for emergency rule procedures,
8providing an exemption from rule-making procedures and emergency rule
9procedures, granting rule-making authority, making an appropriation, and
10providing a penalty.
Analysis by the Legislative Reference Bureau
This bill makes various changes to existing programs, creates new programs
and standards, provides funding, and creates new positions to address
perfluoroalkyl and polyfluoroalkyl substances (PFAS).
Groundwater standards for PFAS
Under current law, the Department of Natural Resources maintains a list of
substances that have a reasonable probability of entering the groundwater resources
of the state and that are shown to involve public health concerns. The Department
of Health Services recommends groundwater enforcement standards for substances
on this list, which DNR then proposes as DNR rules in its rule-making process.
The bill requires DNR to amend its rules to establish DHS's recommended
groundwater enforcement standard for any PFAS as the enforcement standard for
that substance. The bill exempts such rules from certain rulemaking requirements
that would otherwise apply under current law.
Drinking water standards for PFAS
The bill also requires DNR to amend its rules to establish DHS's recommended
groundwater enforcement standard for any PFAS as the maximum contaminant
level for public water systems and water suppliers. The bill exempts such rules from
certain rulemaking requirements that would otherwise apply under current law.
Under the bill, DNR must also require public water systems and water
suppliers to monitor for such PFAS in accordance with requirements under current
DNR rules. The bill also requires public water systems and water suppliers to use
certain specified treatment technologies as an interim best available technology to
treat PFAS for which DHS has recommended an enforcement standard. Public water
systems and water suppliers must also use laboratories certified to analyze drinking
water to conduct required testing, and must use the method detection limit for
reporting purposes.
Soil cleanup standards for PFAS
Under current law, when a responsible party conducts a cleanup action to
address soil contamination, the cleanup must be designed and implemented to
restore the contaminated soil to certain designated residual contaminant levels or
performance standards. Under the bill, DNR must require responsible parties to
establish residual contaminant levels for the cleanup of contaminated soil and
sediment, or select a soil performance standard, as a result of a discharge of any
PFAS.
Emergency rules for PFAS
The bill also requires DNR to promulgate emergency rules establishing
acceptable levels and standards, performance standards, monitoring requirements,
and required response actions for any PFAS that DNR determines may be harmful
to human health or the environment in drinking water, groundwater, surface water,
air (if the standards are needed to provide adequate protection for public health or
welfare), solid waste and solid waste facilities, beds of navigable waters, and soil and
sediment. These emergency rules must cover, at a minimum, PFOS, PFOA, PFHxS,
PFNA, and PFBS.
Rule-making exemptions for PFAS
Current law requires an agency to suspend working on a permanent rule if it
determines that the proposed rule may result in more than $10,000,000 in
implementation and compliance costs over any two-year period. Current law also
allows standing committees of the legislature and the Joint Committee for the
Review of Administrative Rules (JCRAR) to review, approve, object to, or modify a
proposed rule. If JCRAR objects to all or part of a proposed rule, that rule may not
be promulgated unless a bill is introduced and enacted that authorizes the
promulgation of the rule. In addition, current law allows JCRAR to suspend rules
that have already been promulgated; if the rule suspended is an emergency rule, the
agency that promulgated the emergency rule is prohibited from proposing a
permanent rule that contains the same substance as the suspended emergency rule.
The bill creates exemption from these provisions for any proposed or existing DNR
rule that establishes acceptable levels and standards, performance standards,
monitoring requirements, or required response actions for any PFAS compound or
group or class of PFAS in groundwater, drinking water, surface water, air, soil, or
sediment.
The bill also exempts such DNR rules from the requirements under current law
to prepare a statement of the scope of any proposed rule; to have the statement of
scope approved by the governor; to hold a preliminary public hearing on a proposed
rule if ordered to do so by JCRAR; to prepare an economic impact analysis of the
proposed rules; and to prepare a report to the legislature of final rules.
PFAS community grant program
The bill creates a PFAS community grant program, administered by DNR, to
address PFAS. Under the program, DNR must provide grants to cities, towns,
villages, counties, tribal governments, utility districts, lake protection districts,
sewerage districts, municipal airports, schools, and daycares (municipalities). DNR
may award a grant only if the applicant tested or trained with a PFAS-containing
fire fighting foam in accordance with applicable state and federal law, or if a third
party tested or trained with PFAS-containing fire fighting foam within three miles
of a public or private water supply; the applicant applied biosolids to land under a
water pollution permit issued by DNR; or PFAS are affecting the applicant's drinking
water supply or surface water or groundwater within the municipality and the
responsible party is unknown or is unwilling or unable to take the necessary
response actions.
Under the bill, grants provided under this program may be used to do any of the
following: 1) investigate potential PFAS impacts in order to reduce or eliminate
environmental contamination; 2) treat or dispose of PFAS-containing fire fighting
foam or fire fighting foam containers or purchase PFAS-free fire fighting foam; 3)
sample a private water supply within three miles of a site or facility known to contain
PFAS or to have caused a PFAS discharge; 4) provide a temporary emergency water
supply, a water treatment system, or bulk water to replace water contaminated with
PFAS; 5) conduct emergency, interim, or remedial actions to mitigate, treat, dispose
of, or remove PFAS contamination; 6) remove or treat PFAS in public water systems
in areas where PFAS levels exceed the maximum contaminant level for PFAS in
drinking water or an enforcement standard for PFAS in groundwater or in areas
where the state has issued a health advisory for PFAS; 7) sample and test water in
schools and daycares for PFAS contamination; or 8) pay the costs of a mediator to
negotiate between municipalities for an alternate source of clean drinking water.
An applicant for a grant under this program must apply on a form prescribed
by DNR and must include any information that DNR finds necessary to determine
the eligibility of the project, identify the funding requested, determine the priority
of the project, and calculate the amount of a grant. In awarding grants under this
program, DNR must consider the applicant's demonstrated commitment to
performing and completing eligible activities, including the applicant's financial
commitment and ability to successfully administer grants; the degree to which the
project will have a positive impact on public health and the environment; and any
other criteria that DNR finds necessary to prioritize the funds available for awarding
grants.
The bill creates a sum sufficient appropriation from the general fund for this
purpose.
County PFAS well testing grant program
The bill also creates a grant program, under which DNR provides grants to
counties to provide sampling and testing services to private well owners to sample
and test for PFAS, nitrates, bacteria, and lead. The bill appropriates $2,000,000 per
fiscal year from the segregated PFAS fund and creates one additional position at
DNR for this purpose.
Aid for private wells with PFAS contamination
The bill requires DNR to administer a program to provide financial assistance
to municipalities located in an area where soil is contaminated with PFAS. Under
the program, DNR would award grants from the PFAS fund to municipalities for
eligible costs related to (1) construction of a municipal water system, (2) connection
to an existing municipal water system, and (3) assisting owners of private wells, if
appropriate, with the cost of installation of filters, remediation, or well replacement.
PFAS under the Safe Drinking Water Loan Program
Under current law, the Department of Administration and DNR administer the
Safe Drinking Water Loan Program (SDWLP), which provides financial assistance
from the environmental improvement program to municipalities, and to the private
owners of community water systems that serve municipalities, for projects that will
help the municipality comply with federal drinking water standards. DNR
establishes a funding priority list for SDWLP projects, and DOA allocates funding
for those projects.
The bill requires DNR, when ranking the priority of SDWLP projects, to rank
a project relating to PFAS in the same manner as if a maximum contaminant level
for PFAS had been attained or exceeded, if DHS has recommended an enforcement
standard for the type of PFAS involved in the project.
Products containing PFAS
Beginning January 1, 2028, the bill prohibits the sale or distribution of certain
products that contain intentionally added PFAS, including food packaging, cleaning
products, cosmetics, and textile furnishings. The bill prohibits the sale or
distribution of all products containing intentionally added PFAS beginning January
1, 2034. The bill provides certain exemptions to this ban, including by allowing DNR
to identify, by rule, products in which the use of PFAS is an unavoidable use.
The bill allows DNR to require manufacturers to test certain products for PFAS.
A person that violates the prohibition on sales and distribution is subject to a civil
forfeiture of $100 for each violating product, for each day that the violation continues.
Mediator for municipalities seeking alternate water sources due to PFAS
The bill creates an option for DNR to appoint a neutral, third-party mediator
to help negotiate between municipalities and responsible parties when one
municipality needs to obtain an alternate water source or connect to a water source
within a different municipality as a result of PFAS contamination.
Under the bill, the mediator may assist the parties in coming to an agreement
or, if no agreement is reached, recommend a solution. The parties to the mediation
are responsible for the costs of mediation, as determined by the mediator. The
mediator may add additional parties to the negotiation if necessary, and DNR must
provide the mediator with technical assistance.
PFAS-containing fire fighting foam appropriation
Current law establishes a continuing appropriation from the environmental
fund for the collection of PFAS-containing fire fighting foam. The bill allows this
appropriation to also be used to provide assistance to local fire departments in
replacing PFAS-containing fire fighting foam with PFAS-free fire fighting foam.
WPDES permit conditions
Under current law, a wastewater treatment facility, and any person that wishes
to land spread biosolids or other sludge, must obtain a water pollution permit
(WPDES permit) from DNR. DNR is required to include conditions in such permits
to ensure compliance with water quality standards.
Under the bill, a WPDES permit that allows the permittee to land spread
biosolids must also include a condition that requires the permittee to test the sludge
for PFAS, and prohibits the land spreading of the biosolids if PFAS levels exceed
levels set by DNR in the WPDES permit. Additionally, a WPDES permit issued to
a treatment work must require the permittee to test all sludge for the presence of
PFAS and to report the testing results to DNR.
Access to information on solid or hazardous waste
In addition, the bill requires a person who generates solid or hazardous waste
at a site or facility under investigation by DNR to provide DNR with access to
information relating to any transportation to or treatment, storage, or disposal at
another site, facility, or location.
Proof of financial responsibility for PFAS contamination
The bill also provides that DNR may, if it determines doing so is necessary to
protect human health or the environment, require a person who possesses or controls
or who causes the discharge of PFAS, or who manufactures products that contain
intentionally added 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. This financial
responsibility requirement does not apply to a municipality, fire department, fire
district, water utility, wastewater utility, agricultural producer, or the state.
Environmental justice impacts of PFAS transportation and disposal
The bill requires a person disposing of PFAS, or transporting PFAS for the
purpose of disposal, to attempt to the greatest extent possible to avoid disposing of
PFAS in, or transporting PFAS to, any location where such disposal or transportation
will contribute to environmental justice concerns and to consider all reasonable
alternatives for transport and disposal of PFAS. The bill requires DNR to assist in
evaluating the environmental justice impacts of a person's PFAS disposal or
transportation.
