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,,22An Act to renumber and amend 160.07 (5); to amend 20.370 (4) (ps), 227.137 (5), 227.19 (7), 281.61 (6) and 292.31 (1) (d) (intro.); and to create 20.370 (6) (af), 20.370 (6) (cs), 20.370 (6) (et), 92.14 (18), 160.07 (5) (b), 160.15 (4), 227.135 (6), 227.136 (8), 227.138 (3), 227.139 (5), 227.26 (5), 281.17 (8) (c), 281.73, 281.79, 283.31 (4) (g), 283.31 (4) (h), 292.31 (1) (d) 1m., 292.31 (11), 292.66, 292.67, 292.74, 299.485 and 299.487 of the statutes; relating to: regulating and addressing PFAS, extending the time limit for emergency rule procedures, providing an exemption from rule-making procedures and emergency rule procedures, granting rule-making authority, making an appropriation, and providing a penalty. SB1104,,33Analysis 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.
PFAS disposal study
The bill requires DNR to study and analyze different options for disposing of PFAS, including whether the transport of PFAS to certain locations for disposal would present environmental justice concerns. The bill provides $2,000,000 in GPR funding for this purpose.
Legacy PFAS contamination testing
The bill also requires DNR to test for PFAS contamination in soil and groundwater in areas where biosolids have been land applied for at least 10 years and where vulnerable aquifers are present. The bill provides $2,000,000 in GPR funding for this purpose.
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 may survey volunteer 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 GPR funding for this purpose.
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, 2026, on the feasibility and advisability of regulating PFAS as one or more classes of substances.
DATCP testing for PFAS
Under current law, the Department of Agriculture, Trade and Consumer Protection conducts several statewide monitoring programs, sampling programs, and surveys related to testing groundwater quality for agricultural purposes. The bill requires that, when collecting and testing samples under one of these statewide programs, DATCP must also, at its discretion and where appropriate, test samples for the presence of PFAS.
Funding for statewide PFAS sampling and testing
The bill also increases SEG funding for DNR by $1,480,000 in fiscal year 2023-24 and $730,000 in fiscal year 2024-25 for statewide PFAS sampling and testing activities.
Funding for PFAS substance emergency measures
The bill also increases SEG funding for DNR by $900,000 annually for PFAS emergency measures.
