AB321: Bill Text

LRB-3486/1

MCP:ahe&amn

2019 - 2020 LEGISLATURE

2019 Assembly BILL 321

June 27, 2019 - Introduced by Representatives C. Taylor, Gruszynski, Sargent, Sinicki, Anderson, Zamarripa, Stubbs, Stuck, Subeck, Ohnstad, Kolste, Emerson, Spreitzer, Billings, Considine, Hebl, Vining and Shankland, cosponsored by Senators Miller, Hansen, Risser, Larson, Wirch, Erpenbach, Ringhand, Smith, Bewley, Shilling, Carpenter, Johnson, Schachtner and L. Taylor. Referred to Committee on Environment.

AB321,1,8 An Act to amend 292.31 (1) (d) (intro.); and to create 20.370 (4) (aa), 20.370 (4) (ab), 20.370 (4) (ad), 20.370 (4) (ae), 20.370 (4) (ak), 160.07 (4) (f), 160.07 (7), 160.15 (4), 281.17 (8) (c), 285.27 (2) (bm), 292.31 (1) (d) 1m., 292.74 and 299.15 (2m) of the statutes; relating to: setting standards for certain contaminants, providing information relating to off-site disposal of certain waste, extending the time limit for emergency rule procedures, providing an exemption from emergency rule procedures, granting rule-making authority, and making an appropriation.

Analysis by the Legislative Reference Bureau

This bill requires the Department of Natural Resources to establish and enforce various standards for per- and poly-fluoroalkyl substances (PFAS). The PFAS group of substances includes several thousand chemicals; two of the most well known are perfluorooctanoic acid (PFOA) and perfluorooctane sulfonic acid (PFOS).

The bill requires DNR to establish, by rule, acceptable levels and standards, monitoring requirements, and required response actions for any PFAS in drinking water, groundwater, surface water, air, solid waste, beds of navigable waters, and soil and sediment, if the department determines that the substance may be harmful to human health or the environment. These rules must cover, at a minimum, PFOA and PFOS, as well as perfluorohexane sulfonic acid (PFHxS), perfluorononanoic acid (PFNA), perfluorobutane sulfonic acid (PFBS), and perfluoroheptanoic acid (PFHpA). For air emission standards, DNR must first determine that an emission standard for a substance is needed to provide adequate protection for public health and welfare, which is also required for other hazardous air contaminants under current law. The bill also requires DNR to consider all PFAS to be air contaminants and to require reporting of any emission of PFAS.

Under current law, DNR 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. Under this bill, DNR is required to add to this list PFOA, PFOS, PFHxS, PFNA, PFBS, PFHpA, and all other PFAS that have a reasonable probability of entering the groundwater resources of the state and that are shown to involve public health concerns. Under current law, the Department of Health Services recommends enforcement standards for substances on this list, which DNR then proposes as DNR rules in its rule-making process. Until DNR establishes such rules, the bill requires DNR to apply any DHS-recommended groundwater enforcement standard for any PFAS as an interim standard for groundwater and as an interim maximum containment level for drinking water.

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 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.

In addition, the bill requires DNR to set criteria for certifying laboratories to test for PFAS, and to certify laboratories that meet these criteria. Before these criteria are set, the bill allows DNR to require testing for PFAS to be done according to nationally recognized standards.

Finally, 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.

For further information see the state fiscal estimate, which will be printed as an appendix to this bill.

The people of the state of Wisconsin, represented in senate and assembly, do enact as follows:

AB321,1 Section 1 . 20.005 (3) (schedule) of the statutes: at the appropriate place, insert the following amounts for the purposes indicated: - See PDF for table

AB321,2 Section 2 . 20.370 (4) (aa) of the statutes is created to read:

AB321,3,5 20.370 (4) (aa) PFAS — modeling. From the general fund, as a continuing appropriation, the amounts in the schedule to create a model to assist in identifying and prioritizing sites with likely contamination by perfluoroalkyl or polyfluoroalkyl substances or environmental pollution caused by such substances.

AB321,3 Section 3 . 20.370 (4) (ab) of the statutes is created to read:

AB321,3,10 20.370 (4) (ab) PFAS — emergency responder survey. From the general fund, as a continuing appropriation, the amounts in the schedule to conduct a survey of local and state emergency responders and the use of fire fighting foam containing perfluoroalkyl or polyfluoroalkyl substances.

AB321,4 Section 4 . 20.370 (4) (ad) of the statutes is created to read:

AB321,3,14 20.370 (4) (ad) PFAS — general operations. Biennially, from the general fund, the amounts in the schedule for the administration and enforcement of activities relating to perfluoroalkyl or polyfluoroalkyl substances.

AB321,5 Section 5. 20.370 (4) (ae) of the statutes is created to read:

AB321,4,4 20.370 (4) (ae) PFAS — landfills. Biennially, from the general fund, the amounts in the schedule for sampling and testing leachate and groundwater from landfills for perfluoroalkyl and polyfluoroalkyl substances.

AB321,6 Section 6 . 20.370 (4) (ak) of the statutes is created to read:

AB321,4,10 20.370 (4) (ak) PFAS — investigation and assistance. From the general fund, as a continuing appropriation, the amounts in the schedule for investigating emerging contaminants that are perfluoroalkyl or polyfluoroalkyl substances and providing temporary potable water or treatment systems when no responsible party for a contamination is available.

AB321,7 Section 7 . 160.07 (4) (f) of the statutes is created to read:

AB321,4,15 160.07 (4) (f) In recommending an enforcement standard for a perfluoroalkyl or polyfluoroalkyl substance, the department of health services may recommend individual standards for each substance, a standard for these substances as a class, or standards for groups of these substances.

AB321,8 Section 8. 160.07 (7) of the statutes is created to read:

AB321,4,23 160.07 (7) If the department of health services recommends an enforcement standard for a perfluoroalkyl or polyfluoroalkyl substance or a group or class of such substances under this section, the department shall apply the standard as an interim enforcement standard for that substance, including through sampling, monitoring, and testing, and any other actions required by rules promulgated by the department, unless emergency or permanent rules that establish an enforcement standard for that substance are in effect.

AB321,9 Section 9 . 160.15 (4) of the statutes is created to read:

AB321,5,6 160.15 (4) Notwithstanding sub. (1), if an interim enforcement standard for a perfluoroalkyl or polyfluoroalkyl substance is applied under s. 160.07 (7), the department shall apply an interim preventive action limit for that substance of 20 percent of the concentration established as the interim enforcement standard, unless emergency or permanent rules that establish a preventive action limit for that substance are in effect.

AB321,10 Section 10. 281.17 (8) (c) of the statutes is created to read:

AB321,5,14 281.17 (8) (c) If the department of health services recommends an enforcement standard for a perfluoroalkyl or polyfluoroalkyl substance or a group or class of such substances under s. 160.07, the department shall apply the standard as an interim maximum contaminant level for public water systems, water suppliers, and laboratories certified to analyze drinking water, in accordance with rules promulgated by the department, unless emergency or permanent rules that establish maximum contaminant levels for that substance are in effect.

AB321,11 Section 11. 285.27 (2) (bm) of the statutes is created to read:

AB321,5,21 285.27 (2) (bm) Standard for PFAS. The department shall determine whether an emission standard for any known perfluoroalkyl or polyfluoroalkyl substance or a group or class of such substances is needed to provide adequate protection for public health or welfare under par. (b). If the department finds that the standard is needed to provide adequate protection for public health or welfare, the department shall promulgate an emission standard for that substance.

AB321,12 Section 12 . 292.31 (1) (d) (intro.) of the statutes is amended to read:

AB321,6,6 292.31 (1) (d) Access to information. (intro.) Upon the request of any officer, employee, or authorized representative of the department, any person who generated, transported, treated, stored, or disposed of solid or hazardous waste which that may have been disposed of at a site or facility under investigation by the department and any person who generated solid or hazardous waste at a site or facility under investigation by the department that was transported to, treated at, stored at, or disposed of at another site, facility, or location shall provide the officer, employee, or authorized representative access to any records or documents in that person's custody, possession, or control which relate to:

AB321,13 Section 13 . 292.31 (1) (d) 1m. of the statutes is created to read:

AB321,6,10 292.31 (1) (d) 1m. The type and quantity of waste generated at the site or facility that was transported to, treated at, stored at, or disposed of at another site, facility, or location, and the dates and locations of these activities.

AB321,14 Section 14 . 292.74 of the statutes is created to read:

AB321,7,2 292.74 Financial responsibility for PFAS. The department may, if it determines doing so is necessary to protect human health or the environment, require a person who possesses or controls a perfluoroalkyl or polyfluoroalkyl substance to provide proof of financial responsibility for conducting emergency response actions, remedial actions, environmental repair, and long-term care to address contamination by a potential discharge of perfluoroalkyl or polyfluoroalkyl substances or environmental pollution that may be caused by a discharge of such substances. The department shall establish, by rule, the procedure for determining whether requiring a proof of financial responsibility is necessary to protect human health or the environment, and may establish requirements for types of financial responsibility, methods for calculating amounts of financial responsibility, access and default, bankruptcy notifications, and any other requirements the department determines is necessary under this section. The proof of financial responsibility required under this section shall be in addition to any other proof of financial responsibility or financial assurance required under this chapter.

AB321,15 Section 15 . 299.15 (2m) of the statutes is created to read:

AB321,7,6 299.15 (2m) The department shall consider all known perfluoroalkyl or polyfluoroalkyl substances to be air contaminants for purposes of sub. (2) (a) 2. The reporting level for these substances is zero pounds per year.

AB321,16 Section 16 . Nonstatutory provisions.

AB321,7,9 (1) Emergency rules for PFAS in drinking water, groundwater, surface water, solid waste, beds of navigable waters, and contaminated soil and sediment.

AB321,7,20 (a) The department of natural resources shall promulgate emergency rules under s. 227.24 establishing acceptable levels and standards, performance standards, monitoring requirements, and required response actions for any perfluoroalkyl or polyfluoroalkyl substance or group or class of such substances, which the department determines may be harmful to human health or the environment, in drinking water under s. 281.17 (8); groundwater under ss. 160.07 (5) and 160.15; surface water from point sources under ss. 283.11 (4) and 283.21 and from nonpoint sources under s. 281.16; air under s. 285.27 (2) (bm), if the standards are needed to provide adequate protection for public health or welfare; solid waste and solid waste facilities under chs. 289 and 291; beds of navigable waters under s. 30.20; and soil and sediment under chs. 289 and 292.

AB321,8,6 (b) The department of natural resources shall promulgate emergency rules under s. 227.24 to add any perfluoroalkyl or polyfluoroalkyl substance or group or class of such substances that the department determines may be harmful to human health or the environment to the list of toxic pollutants under s. 283.21 (1) (a) for purposes of setting toxic effluent standards or prohibitions under s. 283.11 (4); to add to the list of hazardous constituents under s. 291.05 (4) any perfluoroalkyl or polyfluoroalkyl substance or group or class of such substances for which the department determines that the listing is necessary to protect public health, safety, or welfare; and to administer and enforce ch. 292 in relation to remedial actions involving perfluoroalkyl or polyfluoroalkyl substances or a group or class of such substances.

AB321,8,12 (c) Notwithstanding any finding required under par. (a) or (b), emergency rules promulgated under pars. (a) and (b) shall include, at a minimum, perfluorooctane sulfonic acid, perfluorooctanoic acid, perfluorohexane sulfonic acid, perfluorononanoic acid, perfluorobutane sulfonic acid, and perfluoroheptanoic acid and shall include provisions for enforcing these standards, including requiring sampling, monitoring, testing, and response actions.

AB321,8,19 (d) Notwithstanding s. 227.24 (1) (c) and (2), emergency rules promulgated under pars. (a) and (b) remain in effect until July 1, 2022, or the date on which permanent rules take effect, whichever is sooner. Notwithstanding s. 227.24 (1) (a) and (3), the department of natural resources is not required to provide evidence that promulgating a rule under this subsection as an emergency rule is necessary for the preservation of public peace, health, safety, or welfare and is not required to provide a finding of emergency for a rule promulgated under this subsection.

AB321,9,2 (2) Water quality standards for PFAS. The department of natural resources shall promulgate, under s. 281.15, water quality standards for perfluorooctane sulfonic acid, perfluorooctanoic acid, perfluorohexane sulfonic acid, perfluorononanoic acid, perfluorobutane sulfonic acid, and perfluoroheptanoic acid and any other perfluoroalkyl or polyfluoroalkyl substance or group or class of such substances that the department determines may be harmful to human health and necessary to protect a water's designated use.

AB321,9,8 (3) List of groundwater contaminants. The department of natural resources shall add to the list of groundwater contaminants under s. 160.05 any perfluoroalkyl and polyfluoroalkyl substance or group or class of such substances that is shown to involve public health concerns and that has a reasonable probability of entering the groundwater and shall categorize and rank those substances according to the provisions of s. 160.05.

AB321,9,9 (4) Testing laboratories; emergency rules.

AB321,9,20 (a) The department of natural resources shall promulgate emergency rules under s. 227.24 establishing criteria for certifying laboratories to test for any perfluoroalkyl or polyfluoroalkyl substances, including the standards and methods for such testing, and shall certify laboratories that meet these criteria. Notwithstanding s. 227.24 (1) (c) and (2), emergency rules promulgated under this subsection remain in effect until July 1, 2022, or the date on which permanent rules take effect, whichever is sooner. Notwithstanding s. 227.24 (1) (a) and (3), the department of natural resources is not required to provide evidence that promulgating a rule under this subsection as an emergency rule is necessary for the preservation of public peace, health, safety, or welfare and is not required to provide a finding of emergency for a rule promulgated under this subsection.

AB321,9,23 (b) Before emergency rules are promulgated under par. (a), the department of natural resources may require testing for a perfluoroalkyl or polyfluoroalkyl substance to be done according to any nationally recognized procedures.

AB321,9,25 (5) Position authorizations; natural resources. The authorized FTE positions for the department of natural resources are increased by 7.5 GPR positions on the effective date of this subsection, to be funded from the appropriation under s. 20.370 (4) (ad), for the purpose of administering the provisions of this act.

AB321,17 Section 17 . Fiscal change.

AB321,10,9 (1) Position authorizations; health services. In the schedule under s. 20.005 (3) for the appropriation to the department of health services under s. 20.435 (1) (a), the dollar amount for fiscal years 2019-20 and 2020-21 is increased by $248,600 in each fiscal year to increase the authorized FTE positions for the department by 4.0 GPR research scientist positions for the purpose of recommending enforcement standards for perfluoroalkyl and polyfluoroalkyl substances under s. 160.07.

AB321,18 Section 18 . Effective dates. This act takes effect on the day after publication, except as follows: