Amendment SSA1-SB312

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.

SB312-SSA1,7 Section 7. 281.75 (7) (c) 2. a. of the statutes is amended to read:

SB312-SSA1,9,22 281.75 (7) (c) 2. a. Equipment used for treating the water, including a filtration device and up to 2 replacement filters;

SB312-SSA1,8 Section 8. 292.315 of the statutes is created to read:

SB312-SSA1,9,25 292.315 Municipal PFAS grant program. (1) Definition. In this section, “PFAS” means 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 or for which a health advisory level has been established by the department of health services, if the health advisory level 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.

SB312-SSA1,10,8 (2) Grants. The department shall provide all of the following grants:

SB312-SSA1,10,19 (a) Grants to municipalities to test for PFAS levels at municipal water systems and municipal wastewater treatment facilities, or to reimburse municipalities for PFAS testing performed after applicable standards for the chemical being tested have been promulgated. The department shall base the amount of grant awards under this paragraph on the cost of testing and the amount of testing needed in each community, while ensuring that funding is available to every eligible applicant that submits a claim under this paragraph. The department may not require a municipality that submits a claim for a grant under this paragraph to provide information other than the basic information necessary to process the claim and may not require the recipient of a grant under this paragraph to provide any matching funds.

SB312-SSA1,11,2 (b) Grants, provided in equal shares not to exceed $1,800, to entities that are not municipalities and that are regulated as public or community water systems for the entity to test its drinking water supply for PFAS if required to do so by the department, or for reimbursement to the entity for PFAS testing performed after applicable standards for the chemical being tested have been promulgated. An entity that is not a municipality may apply to the department one time for a grant under this paragraph, by a deadline set by the department. The department may not require the recipient of a grant under this paragraph to provide any matching funds.

SB312-SSA1,11,7 (c) Grants, provided in equal shares not to exceed $15,000, to privately owned solid waste disposal facilities to test for the presence of PFAS in leachate. An entity may apply to the department one time for a grant under this paragraph, by a deadline set by the department. The department may not require the recipient of a grant under this paragraph to provide any matching funds.

SB312-SSA1,11,19 (d) Grants to municipalities to test for PFAS levels at locations that are owned, leased, managed, or contracted for by a municipality and where PFAS may be present, including airports, water systems, wastewater treatment facilities, or contaminated lands, and to test for PFAS levels in leachate at solid waste disposal facilities that are owned, leased, managed, or contracted for by a municipality. The department may not provide a grant under this paragraph to test for PFAS in a water system or wastewater treatment facility if the applicant has received a grant under par. (a), unless the applicant demonstrates that it has used all of the grant funds provided to it under par. (a). The department shall accept applications for grants and provide grants under this paragraph on a rolling basis. The department may not require the recipient of a grant under this paragraph to provide matching funds in an amount greater than 20 percent of the amount of the grant.

SB312-SSA1,11,25 (e) Grants to municipalities and privately owned solid waste disposal facilities to dispose of PFAS-containing biosolids or leachate at facilities that accept such biosolids or leachate. Grant moneys received under this paragraph may not be used for any cost associated with landspreading. The department may not require the recipient of a grant under this paragraph to provide matching funds in an amount greater than 20 percent of the amount of the grant.

SB312-SSA1,12,11 (f) 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. A grant provided under this paragraph may not exceed 50 percent of the municipality's capital or debt service costs, and no municipality may receive grants under this paragraph that total more than 20 percent of the funding available for grants under this paragraph. The department shall accept applications for grants and provide grants under this paragraph on a rolling basis. A municipality may submit an application for a grant under this program at the same time as submitting an application for a grant under s. 281.58 or 281.61.

SB312-SSA1,13,2 (g) Grants to municipalities for capital costs or other costs related to PFAS that are not otherwise paid from the environmental improvement fund, including costs for addressing solid waste disposal facilities or other contaminated lands owned, leased, managed, or contracted for by the municipality and costs incurred by fire departments, including to replace PFAS-containing fire fighting foam; and grants to municipalities for costs incurred by municipal public utilities or metropolitan sewerage districts created under ss. 200.21 to 200.65 for 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. No municipality may receive grants under this paragraph that total more than 20 percent of the funding available for grants under this paragraph. The department may not require the recipient of a grant under this paragraph to provide matching funds in an amount greater than 20 percent of the amount of the grant. The department shall accept applications for grants and provide grants under this paragraph on a rolling basis.

SB312-SSA1,13,10 (3) Limitations. (a) The department may not require the recipient of a grant under sub. (2) to take action to address PFAS contamination unless testing determines that PFAS levels exceed any applicable limit under state or federal law or unless another applicable state or federal law allows the department to require the grant recipient to take action. For purposes of this paragraph, a health advisory level that has been established by the department of health services does not constitute an applicable limit, unless that health advisory level is required to be established and is enforceable under federal law.

SB312-SSA1,13,14 (b) The department may not publicly disclose the results of any PFAS testing conducted under this section unless the department notifies the grant recipient at least 72 hours before publicly disclosing any test result. This paragraph does not apply to any testing required or conducted under ch. 281 or 283.

SB312-SSA1,9 Section 9. 292.32 of the statutes is created to read:

SB312-SSA1,13,17 292.32 Limitations on department actions relating to PFAS. (1) Definitions. In this section:

SB312-SSA1,13,21 (a) “Brownfield property” means 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.

SB312-SSA1,13,23 (b) “Construction project” means a building project that will affect one or more parcels.

SB312-SSA1,14,5 (c) “PFAS” means 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 or for which a health advisory level has been established by the federal environmental protection agency, if the health advisory level is enforceable under federal law.

SB312-SSA1,14,11 (d) “Public works” means 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 solid waste disposal facilities that accept residential waste.

SB312-SSA1,14,16 (2) Brownfields. The department may not require the owner of a brownfield property to conduct testing for the presence of PFAS unless the department has information, including reporting on the toxics release inventory maintained by the U.S. environmental protection agency, that reasonably supports the belief that the property previously had a substantial amount of uncontained PFAS.

SB312-SSA1,14,20 (3) Construction projects. (a) The department may not prevent, delay, or otherwise impede any construction project or project of public works on the basis of a presence of PFAS contamination unless the department determines any of the following:

SB312-SSA1,14,21 1. The project poses a substantial risk to public health or welfare.

SB312-SSA1,14,23 2. There is a substantial risk that the project will create worsening environmental conditions.

SB312-SSA1,14,25 3. The entity proposing to complete the project is, as a result of negligence or intentional conduct, responsible for the original contamination.

SB312-SSA1,15,5 (b) If the department believes a project could not be prevented, delayed, or otherwise impeded under par. (a) but for a potential violation of a federal water quality certification, the department shall seek an exemption to the water quality certification. The department shall notify the project owner of the status promptly and regularly until a decision is rendered.

SB312-SSA1,15,7 (4) PFAS testing requirements. If the department conducts testing under this chapter for PFAS, the department shall comply with all of the following:

SB312-SSA1,15,10 (a) The department 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.

SB312-SSA1,15,14 (b) The department may not publicly disclose the results of any PFAS testing conducted on samples taken from lands not owned by the state unless the department notifies the landowner of the test results at least 72 hours before publicly disclosing the test results.

SB312-SSA1,15,21 (c) The department may not take any enforcement action based on the results of any PFAS testing conducted on samples taken from lands not owned by the state unless that testing determines that PFAS levels exceed any applicable limit under state or federal law or another applicable state or federal law requires the department to take enforcement action against the landowner. This paragraph does not limit the ability of a landowner or other authorized party to voluntarily take remedial action based on test results collected by the department.

SB312-SSA1,16,3 (5) PFAS testing requests. The department shall, in a timely manner, respond 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 department may contract with a 3rd party to respond to requests for testing under this paragraph.

SB312-SSA1,10 Section 10 . 292.34 of the statutes is created to read:

SB312-SSA1,16,6 292.34 Innocent landowner grant program. (1) In this section, “PFAS” has the meaning given in s. 292.315 (1).

SB312-SSA1,16,9 (2) The department shall administer a program under which the department may provide a grant to an eligible person who owns property that is contaminated by PFAS.

SB312-SSA1,16,12 (3) A person is eligible for a grant under this section if the original PFAS contamination is not the result of negligence or intentional conduct by the person or if the person is any of the following:

SB312-SSA1,16,13 (a) A person who spread, but did not generate, biosolids contaminated by PFAS.

SB312-SSA1,16,15 (b) Fire departments and municipalities responding to emergencies that required the use of PFAS.

SB312-SSA1,16,16 (c) Solid waste disposal facilities that accepted PFAS.

SB312-SSA1,16,22 (4) Grants under this section may be used to cover costs associated with additional testing; environmental studies; engineering reports; clean drinking water supplies, including temporary potable water, filtration, well replacement, or interconnection to a municipal water supply; remediation costs; and any other cost resulting from landspreading of contaminated biosolids, detection of groundwater contamination, or other contamination events affecting the property.