AB419: Bill Text

MCP:amn&cdc

2021 - 2022 LEGISLATURE

2021 Assembly BILL 419

June 25, 2021 - Introduced by Representatives Baldeh, Hebl, Shankland, Shelton, Billings, Sinicki, Neubauer, Hong, Hintz, Snodgrass, Andraca, Conley, Considine, Subeck, Brostoff, Pope, S. Rodriguez, Cabrera, Anderson, Emerson, Doyle, Hesselbein, Drake, Vining, Vruwink, Bowen, Stubbs, Ohnstad, Spreitzer, B. Meyers, Ortiz-Velez, Riemer, Milroy, Moore Omokunde, L. Myers and Haywood, cosponsored by Senators Agard, Pfaff, Smith, Roys, Larson, Carpenter, Erpenbach, Wirch, L. Taylor, Johnson, Ringhand and Bewley. Referred to Committee on Government Accountability and Oversight.

AB419,1,8 An Act to amend 20.370 (1) (mu), 281.61 (6) and 292.31 (1) (d) (intro.); and to create 20.285 (1) (as), 20.370 (4) (az), 20.370 (4) (pr), 20.370 (4) (ps), 20.370 (6) (ed), 20.370 (6) (ee), 25.17 (1) (kt), 25.461, 36.50, 160.07 (7), 160.15 (4), 227.139 (5), 281.15 (5m), 281.17 (8) (c), 281.79, 285.27 (2) (bm), 292.31 (1) (d) 1m., 292.31 (11), 292.66, 292.67, 292.74, 299.15 (2m), 299.48 (1) (am), 299.48 (1) (e), 299.48 (3d), 299.48 (3m) (c) and 299.485 of the statutes; relating to: regulating and addressing PFAS, providing an exemption from rule-making procedures, granting rule-making authority, and making an appropriation.

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 apply DHS's recommended groundwater enforcement standard for any PFAS as an interim groundwater enforcement standard for all facilities, practices, and activities that may affect groundwater and that are regulated by certain state agencies, unless emergency or permanent rules that establish an enforcement standard for those substances are in effect.

Drinking water standards for PFAS

The bill also requires DNR to apply DHS's recommended enforcement standard for any PFAS as an interim maximum contaminant level for public water systems and water suppliers. 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.

Water quality criteria for PFAS

Under the federal Clean Water Act and under current state law, DNR is required to set water quality standards for the waters of the state. Water quality standards consist of designated uses for each of the waters of the state, water quality criteria for those waters based on their designated use, and antidegradation provisions that prohibit the degradation of existing uses. This bill requires DNR to promulgate water quality criteria for any PFAS for which DHS has recommended a groundwater enforcement standard.

Soil and sediment residual contamination levels 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 this bill, DNR must require responsible parties to establish residual contaminant levels for the cleanup of contaminated soil and sediment as a result of a discharge of any PFAS for which DHS has recommended a groundwater enforcement standard.

Air emission standards and reporting requirements for PFAS

Under the bill, DNR must also establish air emission standards for any PFAS for which DHS has recommended a groundwater enforcement standard, to provide adequate protection for public health and welfare, taking into account energy, economic, and environmental impacts and other costs related to the emission source. The bill also requires DNR to consider any PFAS for which DHS has recommended a groundwater enforcement standard to be an air contaminant and to require reporting of any emission of those PFAS.

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. The bill creates an exemption from this requirement for any proposed 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.

PFAS municipal grant program

The bill creates a municipal grant program, administered by DNR, to address PFAS. Under the program, DNR must provide grants to cities, towns, villages, counties, utility districts, lake protection districts, sewerage districts, and municipal airports. 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 the boundaries of the municipality; the applicant applied biosolids to land under a water pollution permit issued by DNR; or PFAS are impacting 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 investigate potential PFAS impacts in order to reduce or eliminate environmental contamination; treat or dispose of PFAS-containing fire fighting foam containers; sample a private water supply within three miles of a site or facility known to contain PFAS or to have caused a PFAS discharge; provide a temporary emergency water supply, a water treatment system, or bulk water to replace water contaminated with PFAS; conduct emergency, interim, or remedial actions to mitigate, treat, dispose of, or remove PFAS contamination; 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; or pay the costs of a mediator to negotiate between municipalities for an alternate source of clean drinking water.

An applicant that receives a grant under this program must contribute matching funds equal to at least 20 percent of the amount of the grant. The applicant must apply for a grant on a form prescribed by DNR and must include any information that DNR finds is 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.

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 provides $2,000,000 per fiscal year and creates one additional position at DNR for this purpose.

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.

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 fire fighting foam regulation

The bill includes several provisions that were included in DNR emergency rule 2045 and partially suspended by the Joint Committee for Review of Administrative Rules. Specifically, the bill:

1. Defines the term “foam” to include any material that contains PFAS that is generated as a result of foam storage, containment, or treatment, including treatment media, equipment used to clean up fire fighting foams, booms, filters, infrastructure, or other debris.

2. Defines the term “treatment” in a way that requires the immobilization, removal, or destruction of the contaminant.

3. Requires a person responsible for treatment of foam who uses a treatment other than incineration or thermal destruction to monitor and sample any treated wastewater for certain specific indicator parameters; requires treated wastewater samples to be collected at least weekly during periods of discharge; and specifies response actions that must be taken if the concentration of PFAS in a wastewater sample exceeds a specified treatment indicator parameter action level.

4. Requires the notification to DNR that is required under current law to be done according to ch. NR 706, Wis. Adm. Code.

PFAS in food packaging

The bill also prohibits, beginning January 1, 2025, the distribution, sale, or offering for sale of any food packaging that contains intentionally added PFAS. A violation of this requirement would be subject to the same penalty for general environmental violations under current law, which is a civil forfeiture of between $10 and $5,000 for each violation.

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 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.

Statewide PFAS biomonitoring studies

The bill requires DHS to conduct biomonitoring studies across the state to assess PFAS exposure levels and better understand the factors that affect PFAS levels in residents of different communities. As part of these studies, DHS must survey participants, test blood samples for PFAS, and analyze the results. The bill authorizes 5.0 additional FTE positions in DHS to conduct these studies and provides $630,000 in annual funding for this purpose.

Longitudinal PFAS and human health study

The bill also requires the Division of Extension at the University of Wisconsin-Madison to undertake a longitudinal human health study to assess the possible human health effects of PFAS. As part of this study, the Division of Extension must conduct an extensive, long-term health survey of participants, test blood and urine samples for PFAS and for markers of health effects, and analyze the results. The bill provides $1,000,000 in annual funding for this purpose. The bill also requires the Division of Extension to make any data generated from the study available to DHS.

Criteria for certifying labs for PFAS testing

In addition, the bill requires DNR to set criteria for certifying laboratories to test for PFAS, and to certify laboratories that meet these criteria. These criteria must be based on protocols established by the federal Environmental Protection Agency and the federal Department of Defense. Before these criteria are set, the bill allows DNR to require testing for PFAS to be done according to nationally recognized procedures.

Report on regulating PFAS as a class

The bill also requires DNR and DHS to submit a joint report to the legislature, no later than June 30, 2023, on the feasibility and advisability of regulating PFAS as one or more classes of substances.

Funding and emergency rules for PFAS fire fighting foam collection

The bill provides $1,000,000 in a new continuing SEG appropriation for the purpose of collecting and disposing of PFAS-containing fire fighting foam. The bill also allows DNR to promulgate emergency rules relating to the collection and disposal of PFAS-containing fire fighting foams without finding an emergency, preparing a statement of scope, or submitting the final proposed rules to the governor for approval.

Funding for sampling and testing public water supplies for PFAS

The bill also provides $750,000 in a new continuing SEG appropriation for the purpose of sampling and testing public water supplies for PFAS.

Funding for testing for PFAS in rivers and wastewater treatment facilities

The bill increases SEG funding for DNR to test for PFAS contamination in water supplies, including $55,000 each fiscal year for testing in rivers and $25,000 each fiscal year for testing at wastewater treatment facilities.

Funding for testing for PFAS at sites under state responsibility

The bill also increases SEG funding for DNR by $600,000 in each fiscal year for the purpose of testing for and addressing PFAS contamination at sites and facilities for which the state has assumed responsibility.

DNR PFAS positions

The bill authorizes 11.0 additional SEG positions relating to PFAS in DNR and provides funding for those positions.

DHS PFAS positions

The bill authorizes 4.0 additional GPR positions in DHS for the purpose of recommending groundwater enforcement standards for PFAS and provides funding for those positions.

PFAS action fund

Finally, the bill creates a new segregated fund, designated as the PFAS action fund, to collect all moneys received from DNR's portion of settlement agreements in court actions, or proposed actions, resulting from PFAS contamination. The funds must be used to carry out the purposes for which they were received.

For further information see the state and local 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:

AB419,1 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

AB419,2 Section 2 . 20.285 (1) (as) of the statutes is created to read:

AB419,7,3 20.285 (1) (as) PFAS human health study. The amounts in the schedule to conduct the study under s. 36.50.

AB419,3 Section 3 . 20.370 (1) (mu) of the statutes is amended to read:

AB419,8,4 20.370 (1) (mu) General program operations — state funds. The amounts in the schedule for general program operations that are conducted under ss. 23.09 to 23.11, 27.01, 30.203, 30.277, and 90.21, and chs. 29 and 169, for activities conducted under the ecological inventory and monitoring program of the endangered resources program, for the aquatic and terrestrial resources inventory under s. 23.09 (2) (km), for providing the signage required under s. 23.118, for toxicology testing relating to perfluoroalkyl and polyfluoroalkyl substances, and for payments of $53,700 in each fiscal year, to be credited to the appropriation account under s. 20.285 (1) (k), to the University of Wisconsin System for outdoor skills training under s. 29.598.

AB419,4 Section 4 . 20.370 (4) (az) of the statutes is created to read:

AB419,8,8 20.370 (4) (az) PFAS — settlement funds. From the PFAS action fund, all moneys described under s. 25.461 to carry out the purposes for which they are received.

AB419,5 Section 5 . 20.370 (4) (pr) of the statutes is created to read:

AB419,8,12 20.370 (4) (pr) PFAS in public water supplies. From the environmental fund, as a continuing appropriation, the amounts in the schedule for sampling and testing public water supplies for PFAS contamination.

AB419,6 Section 6 . 20.370 (4) (ps) of the statutes is created to read: