Amendment SSA1-SB312

LRBs0074/1

MP/ZW/ES/SWB:skw&amn

2023 - 2024 LEGISLATURE

SENATE SUBSTITUTE AMENDMENT 1, TO SENATE BILL 312

June 20, 2023 - Offered by Senators Wimberger and Cowles.

SB312-SSA1,1,6 An Act to renumber 281.58 (8e); to amend 281.61 (6) and 281.75 (7) (c) 2. a.; and to create 66.0811 (4), 196.49 (7), 281.58 (8e) (bm), 281.75 (5m), 292.315, 292.32 and 292.34 of the statutes; relating to: programs and requirements to address perfluoroalkyl and polyfluoroalkyl substances and modifying administrative rules related to emergency utility services and test wells for community water systems.

Analysis by the Legislative Reference Bureau

This bill creates several new programs and requirements relating to PFAS, which is defined in the bill to mean perfluorooctanesulfonic acid (PFOS), perfluorooctanoic acid (PFOA), perfluorohexanesulfonic acid (PFHxS), perfluorononanoic acid (PFNA), perfluoroheptanoic acid (PFHpA), perfluorodecanoic acid (PFDA), and any other perfluoroalkyl or polyfluoroalkyl substance for which a standard has been promulgated under state or federal law. Certain provisions of the bill define PFAS to include additional substances.

Municipal PFAS grant program

The bill requires the Department of Natural Resources to create a municipal PFAS grant program. For purposes of this program, “PFAS” is defined to also include perfluoroalkyl and polyfluoroalkyl substances for which a health advisory level (HAL) has been established by the Department of Health Services, if the HAL received a public comment period of at least 30 days and a response to any written comments that cited specific concerns, or by the federal Environmental Protection Agency. Under the bill, the municipal PFAS grant program provides all of the following grants:

1. Grants to municipalities (defined under current law as a city, town, village, county, county utility district, town sanitary district, public inland lake protection and rehabilitation district, or metropolitan sewage district) for PFAS testing at municipal water systems and municipal wastewater treatment facilities, or for reimbursement for such testing.

2. Grants to nonmunicipal entities regulated as public or community water systems, distributed in equal shares up to $1,800, to test their drinking water supply for PFAS, if required to do so by DNR, or for reimbursement for such testing.

3. Grants to privately owned landfills, in equal shares up to $15,000, to test for the presence of PFAS in leachate.

4. Grants to municipalities to test for PFAS levels at municipally owned, leased, managed, or contracted locations where PFAS may be present, including testing for PFAS levels in leachate at landfills. These grants are not available to municipalities that receive a grant under this program to test for PFAS at municipal water systems and municipal wastewater treatment facilities. For these grants, DNR may require matching funds of up to 20 percent from the applicant.

5. Grants to municipalities and privately owned landfills to dispose of PFAS-containing biosolids or leachate at facilities that accept such biosolids or leachate. For these grants, DNR may require matching funds of up to 20 percent from the applicant and the grants may not be used for costs associated with landspreading.

6. Grants for capital costs or debt service, including for facility upgrades or new infrastructure, to municipalities that are small or disadvantaged or in which rates for water or wastewater utilities will increase by more than 20 percent as a direct result of steps taken to address PFAS contamination.

7. Grants to municipalities for capital costs or other costs related to PFAS that are not otherwise paid from the segregated environmental improvement fund, including costs for addressing landfills or other contaminated lands owned, leased, managed, or contracted for by municipalities or costs incurred by fire departments; or for costs incurred by public utilities or metropolitan sewerage districts for pretreatment or other PFAS reduction measures in certain circumstances. For these grants, DNR may require matching funds of up to 20 percent from the applicant.

For all of the grants provided under the municipal PFAS grant program, DNR may not require a grant recipient to take any action to address PFAS unless PFAS levels exceed any existing standard under state or federal law or unless state or federal law otherwise allows DNR to require the grant recipient to take action. The bill also prohibits DNR from publicly disclosing the results of any PFAS testing conducted under this grant program unless DNR notifies the grant recipient at least 72 hours before publicly disclosing any test result, with certain exceptions.

Current law provides that whenever a state agency is authorized to provide state funds to any county, city, village, or town for any purpose, funds may also be granted by that agency to any federally recognized tribal governing body for the same purpose.

Innocent landowner grant program

The bill also requires DNR to create an innocent landowner grant program to provide grants to persons that own property with PFAS contamination if the contamination is not the result of negligence or intentional conduct by the person or if the person 1) spread, but did not generate, biosolids contaminated by PFAS; 2) is a fire department or municipality responding to an emergency that required the use of PFAS; or 3) is a solids waste disposal facility that accepted PFAS. The total amount of grants awarded may not exceed $250,000 and DNR may require grant recipients to provide matching funds of not more than 5 percent of the grant amount.

Limitations on DNR actions relating to PFAS

Under the bill, DNR may not require the owner of a brownfield property to test for PFAS unless DNR has information that the property previously had a substantial amount of uncontained PFAS. “Brownfield property” is defined to mean abandoned or idle industrial or commercial facilities or sites or agricultural lands, the expansion, development, or redevelopment of which is adversely affected by actual or perceived environmental contamination. For purposes of the limitations described here, “PFAS” also includes perfluoroalkyl and polyfluoroalkyl substances for which a HAL has been established by the EPA, if the HAL is enforceable under federal law.

Under the bill, DNR may not prevent, delay, or otherwise impede any construction project or project of public works based on a presence of PFAS contamination unless DNR determines that 1) the project poses a substantial risk to public health or welfare, 2) there is a substantial risk that the project will create worsening environmental conditions, or 3) the entity proposing to complete the project is, as a result of negligence or intentional conduct, responsible for the original contamination. “Public works” is defined to mean the physical structures and facilities developed or acquired by a local unit of government or a federally recognized American Indian tribe or band in this state to provide services and functions for the benefit and use of the public, including water, sewerage, waste disposal, utilities, and transportation, and privately owned landfills that accept residential waste.

In addition, under the bill, if DNR conducts testing for PFAS under the current spills law, DNR may not collect samples from lands not owned by the state without written permission from the landowner to collect samples, to test those samples, and to publicly disclose the results of that testing. DNR also may not publicly disclose such PFAS testing results unless it notifies the landowner of the test results at least 72 hours before publicly disclosing them. In addition, DNR may not take any enforcement action against a landowner based on the results of any PFAS testing conducted on samples taken from lands not owned by the state unless PFAS levels exceed any applicable limit under state or federal law or another applicable state or federal law requires DNR to take enforcement action. In addition, DNR, or a third-party contract by DNR, must respond in a timely manner to requests from any person to conduct PFAS testing on samples taken from the person's property if practicable and if funds are available to do so, if there is a reasonable belief that PFAS contamination may be present on the property, and if existing information such as public water supply testing data is not available. The bill also provides that, if DNR believes that a project could not be prevented, delayed, or otherwise impeded under the provisions of this bill but for a potential violation of a federal water quality certification, DNR must seek an exemption to that water quality certification.

The bill also requires DNR, in the 2023-25 fiscal biennium, to increase its PFAS testing activities.

Fire fighting foam

The bill requires DNR to survey or resurvey local fire departments about their use and possession of PFAS-containing fire fighting foam, send communications and information, and contract with a third party to collect PFAS-containing firefighting foam.

Well compensation grant program

Under current law, an individual owner or renter of a contaminated private well, subject to eligibility requirements, may apply for a grant from DNR to cover a portion of the costs to treat the water, reconstruct the well, construct a new well, connect to a public water supply, or fill and seal the well. The bill provides that a grant for costs to treat the water may be used to cover the cost of a filtration device and up to two replacement filters.

In addition, under the bill, if DNR determines that a claimant who is applying for a grant under the well compensation grant program on the basis of PFAS contamination would be eligible for a grant under the innocent landowner grant program created under the bill, and funding under that program is available, DNR may refer the claimant's application to that program instead of processing it under the well compensation grant program.

Portable water treatment system pilot project

The bill requires DNR to contract with an entity to conduct a pilot project in which PFAS-contaminated surface water is partially or fully diverted to a portable treatment system and treated water is returned to the surface water. DNR and the entity must conduct tests to evaluate the success of the pilot project.

Remedial action at sites contaminates by PFAS

The bill allows DNR, or a contracted third party, to begin response and remedial actions, including site investigations, at any PFAS-contaminated site where a responsible party has not been identified or the responsible party is unable to pay for remediation. The bill directs DNR to prioritize response and remedial actions at sites that have the highest levels of PFAS contamination and sites with the greatest threats to public health or the environment because of PFAS.

Assistance for testing laboratories

The bill requires DNR and the Board of Regents of the University of Wisconsin System to enter into a memorandum of understanding to ensure that the state laboratory of hygiene provides guidance and other materials, conducts training, and provides assistance to laboratories in this state that are certified to test for contaminants other than PFAS in order for them to become certified to test for PFAS, and to assist laboratories certified to test for PFAS in this state to reduce their testing costs and shorten the timeline for receiving test results.

Under the bill, the Board of Regents, in coordination with DNR, may provide grants to laboratories in this state that are certified to test for PFAS, or that are seeking such certification, to assist with up to 40 percent of the costs of purchasing equipment necessary for testing for PFAS.

The bill requires the state laboratory of hygiene to prepare a report on these efforts and provide the report to the legislature.

PFAS studies and reporting

The bill requires DNR and the Board of Regents of the University of Wisconsin System to enter into a memorandum of understanding to 1) study and analyze the cost, feasibility, and effectiveness of different methods of treating PFAS before they are released into a water system or water body; 2) conduct a cost-benefit analysis of different options for disposing of biosolids or sludge that contains or may contain PFAS; 3) study and analyze the cost, feasibility, and effectiveness of different destruction and disposal methods for PFAS; 4) study and analyze the migration of PFAS into the bay of Green Bay; 5) study and analyze the migration of PFAS into the Wisconsin and Mississippi Rivers and their tributaries; 6) create a comprehensive, interactive map showing all available PFAS testing data and, for each data point, whether it exceeds any applicable state or federal standard for PFAS; and 7) conduct any additional studies related to PFAS, as approved by the Joint Committee on Finance. Such data may not contain any personally identifiable information unless the entity to which the data applies is a municipal entity that is required to test and disclose its results under state law.

DNR reporting requirements

The bill requires DNR to report to the legislature once every six months for a period of three years to provide a detailed description of DNR's expenditures under the bill and a detailed description of DNR's progress in implementing the provisions of the bill.

Clean Water Fund Program and 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 to municipalities, and to the private owners of community water systems that serve municipalities, for projects that will help the municipalities comply with federal drinking water standards. DNR establishes a funding priority list for SDWLP projects, and DOA allocates funding for those projects. Also under current law, DNR administers the Clean Water Fund Program (CWFP), which provides financial assistance to municipalities for projects to control water pollution, such as sewage treatment plants.

Under the bill, if DNR, when ranking SDWLP or CWFP projects or determining an applicant's eligibility for assistance under those programs, considers whether an applicant that intends to extend service outside municipal boundaries because of water contamination is “small” or “disadvantaged,” DNR must determine the applicant to be small or disadvantaged if the area receiving the extended service would normally be determined to be small or disadvantaged, regardless of whether the existing service area would normally be determined to be small or disadvantaged.

Public water utility projects

Under current law, a public utility may not engage in certain construction, expansion, or other projects unless the Public Service Commission grants a certificate of authority (CA) for the proposed project. Under the bill, if a water public utility or a combined water and sewer public utility (water utility) fails to obtain a CA before commencing a project for which one is required, PSC may not investigate, impose a penalty against, or bring an action to enjoin the water utility if 1) the water utility undertook the project in response to a public health concern caused by PFAS or an emerging contaminant, the presence of which was unknown to the water utility until shortly before it commenced the project and the contaminant or PFAS exceeded or was close to exceeding an applicable state or federal standard, if such a standard exists; 2) the water utility submits the appropriate application and supporting documentation to PSC no later than six months after commencing the project; and 3) the total cost of the project is not greater than $2,000,000. The bill defines “emerging contaminant” as a chemical or material characterized by a perceived, potential, or real threat to human health or the environment and by a lack of, or newly established, published standards.

In the PSC administrative code, the bill adds an emergency resulting from water supply contamination to the circumstances under which PSC authorization is not necessary prior to a utility beginning necessary repair work. The current administrative code limits this to an emergency resulting from the failure of power supply or from fire, storm, or similar events.

Use of revenue for PFAS source reduction measures

The bill authorizes a municipal public utility or metropolitan sewerage district to use revenues from its water or sewerage services for up to half of the cost of pretreatment or other PFAS source reduction measures for an interconnected customer or other regular customer if the costs incurred are less than the costs of the upgrades otherwise required at the endpoint treatment facility and if the costs are approved by the governing body of the municipality or the metropolitan sewerage district.

Test wells for community water systems

Under rules promulgated by DNR relating to community water systems (a system for providing piped water for human consumption to the public and that serves at least 15 service connections used by year-round residents or regularly serves at least 25 year-round residents), DNR must pre-approve any test wells that will be converted into permanent wells and any test wells that will pump at least 70 gallons per minute for more than 72 hours. DNR rules require test wells to be drilled for permanent wells for community water systems to determine geologic formation information and water quality and quantity data. DNR rules also allow DNR to designate special well casing depth areas within which wells must be drilled to a greater depth and meet other requirements to avoid contamination.

This bill provides that test wells for community water systems must also be approved by DNR if they are located in special well casing depth areas that have been designated based in whole or in part on the presence of PFAS.

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

SB312-SSA1,1 Section 1 . 66.0811 (4) of the statutes is created to read:

SB312-SSA1,7,9 66.0811 (4) Notwithstanding subs. (2) and (3) and s. 66.0901 (11), a municipal public utility or a metropolitan sewerage district created under ss. 200.21 to 200.65 may use funds derived from its water or sewerage services for up to one-half the cost of pretreatment or other perfluoroalkyl and polyfluoroalkyl substances source reduction measures for an interconnected customer or other regular customer if the costs incurred are less than the costs of the upgrades otherwise required at the endpoint treatment facility and if the costs are approved by the governing body of the municipality or the metropolitan sewerage district.

SB312-SSA1,2 Section 2 . 196.49 (7) of the statutes is created to read:

SB312-SSA1,7,13 196.49 (7) (a) In this subsection, “emerging contaminant” means a chemical or material characterized by a perceived, potential, or real threat to human health or the environment and by a lack of, or newly established, published standards.

SB312-SSA1,7,18 (b) With respect to a water public utility or a combined water and sewer public utility, the commission may not investigate, impose a penalty against, or bring an action to enjoin the public utility for failing to obtain a certificate of authority before commencing a project for which one is required under this section if all of the following apply:

SB312-SSA1,8,3 1. The public utility undertook the project in response to a public health concern caused by an emerging contaminant or by PFAS, as defined in s. 292.315 (1), the presence of which was unknown to the public utility until shortly before it commenced the project, and the contaminant or PFAS exceeded or was close to exceeding an applicable state or federal standard, if such a standard exists.

SB312-SSA1,8,6 2. The public utility submits the appropriate application and supporting documentation to the commission no later than 6 months after the project was commenced.

SB312-SSA1,8,7 3. The total cost of the project is not greater than $2,000,000.

SB312-SSA1,3 Section 3. 281.58 (8e) of the statutes is renumbered 281.58 (8e) (am).

SB312-SSA1,4 Section 4. 281.58 (8e) (bm) of the statutes is created to read:

SB312-SSA1,8,17 281.58 (8e) (bm) If the department, when ranking projects under this subsection or determining an applicant's eligibility for assistance under this section, considers whether an applicant that intends to extend service outside the boundaries of a municipality because of water contamination is small or disadvantaged, the department shall, to the extent allowable under federal law, determine the applicant to be small or disadvantaged if the area receiving the extended service would normally be determined to be small or disadvantaged, regardless of whether the existing service area would normally be determined to be small or disadvantaged.

SB312-SSA1,5 Section 5. 281.61 (6) of the statutes is amended to read:

SB312-SSA1,9,12 281.61 (6) Priority list. The department shall establish a priority list that ranks each safe drinking water loan program project. The department shall promulgate rules for determining project rankings that, to the extent possible, give priority to projects that address the most serious risks to human health, that are necessary to ensure compliance with the Safe Drinking Water Act, 42 USC 300f to 300j-26, and that assist applicants that are most in need on a per household basis, according to affordability criteria specified in the rules. For the purpose of ranking projects under this subsection, the department shall treat a project to upgrade a public water system to provide continuous disinfection of the water that it distributes as if the public water system were a surface water system that federal law requires to provide continuous disinfection. If the department, when ranking projects under this subsection or determining an applicant's eligibility for assistance under this section, considers whether an applicant that intends to extend service outside the boundaries of a local governmental unit because of water contamination is small or disadvantaged, the department shall, to the extent allowable under federal law, determine the applicant to be small or disadvantaged if the area receiving the extended service would normally be determined to be small or disadvantaged, regardless of whether the existing service area would normally be determined to be small or disadvantaged.

SB312-SSA1,6 Section 6. 281.75 (5m) of the statutes is created to read:

SB312-SSA1,9,19 281.75 (5m) Referral to the innocent landowner grant program. If the department determines that a claimant that submits a claim under this section on the basis of contamination by perfluoroalkyl or polyfluoroalkyl substances would be eligible for a grant under the innocent landowner grant program under s. 292.34, and moneys are available under s. 292.34, the department may refer the claim to the program under s. 292.34 instead of reviewing the claim under this section.