SB312: Bill Text

SB312,,1 2023 SENATE BILL 312

May 24, 2023 - Introduced by Senators Wimberger, Cowles, Ballweg, Cabral-Guevara, Felzkowski, Feyen, Nass and Quinn, cosponsored by Representatives Mursau, Swearingen, Behnke, Binsfeld, Dittrich, Donovan, Green, Kitchens, Moses, O’Connor, Snyder, Spiros, Steffen, Summerfield and Wittke. Referred to Committee on Natural Resources and Energy.

SB312,,2 An Act to renumber 281.58 (8e); to amend 281.61 (6) and 281.75 (7) (c) 2. a.; and to create 66.0224, 66.0811 (4), 196.03 (7), 196.49 (7), 281.58 (8e) (bm), 292.315 and 292.32 of the statutes; relating to: programs and requirements to address perfluoroalkyl and polyfluoroalkyl substances.

SB312,,3 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.

Municipal PFAS grant program

The bill requires the Department of Natural Resources to create a municipal PFAS grant program to provide 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), distributed in equal shares, 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 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 municipalities to test for PFAS levels at municipally owned or managed locations where PFAS may be present. 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. These grants require matching funds of up to 20 percent from the applicant.

4. Grants to municipalities to dispose of PFAS-containing biosolids at facilities that accept such biosolids. These grants require matching funds of up to 20 percent from the applicant.

5. 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.

6. 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 applicant-owned contaminated lands or costs incurred by fire departments. These grants 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.

Innocent landowner grant program

The bill also requires DNR to provide grants to persons that own property with PFAS contamination that is not known to be the responsibility of the person. 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 20 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, idle, or underused industrial or commercial facilities or sites, the expansion or redevelopment of which is adversely affected by actual or perceived environmental contamination.

Under the bill, DNR may not prevent, delay, or otherwise impede any development project or project of public works based on a presence of PFAS contamination unless DNR determines that 1) the project poses a measurable risk to public health or welfare, 2) there is a substantial risk that the project would lead to worsening environmental conditions, or 3) the entity proposing to complete the project is, as a result of negligence, 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.

In addition, under the bill, when testing for PFAS, 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 must respond to requests from any person to conduct PFAS testing on samples taken from the person’s property 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 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.

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 requires DNR to begin response and remedial actions at any PFAS-contaminated site where a responsible party has not been identified or the responsible party is unable to pay for remediation.

Reduction of PFAS testing costs

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 reduces the costs of conducting testing for PFAS by at least 10 percent within two years. The bill requires the state laboratory of hygiene to prepare a report on its efforts to reduce the cost of PFAS testing and the timeline for receiving testing results.

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; and 5) 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. Such data may not contain any personally identifiable information unless the entity to which the data applies is required to test and disclose its results under state or federal 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 of 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, if there is an applicable state or federal standard for the contaminant, the contaminant exceeded or was close to exceeding that standard; 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 or 50 percent of the utility’s operating expenses for the previous year, whichever is less.

Under current law, a water utility may not change the rates that it charges to customers without first applying to PSC for approval of the change. This bill requires PSC to authorize a separate rate class of customers if requested by a water utility under certain circumstances. Specifically, the bill requires this authorization with respect to those customers to whom water or combined water and sewer utility service was extended outside of the water utility’s service territory in response to a public health concern caused by contamination. Under the bill, PSC must authorize higher rates for this class of customers for the purpose of financing the extension of service. The bill requires PSC to allow the class to remain in effect for 10 years or for the duration of any financing authorized to fund the extension of service, whichever is longer.

Limitations on annexation and use of revenue for PFAS source reduction measures

Under the bill, no city or village may annex territory for which water or sewerage services have been extended beyond the city’s or village’s municipal boundaries due to an immediate public health concern from an emerging contaminant for at least three years following the completion of the extension of services unless two-thirds of the qualified electors residing in the affected territory vote to approve the annexation.

The bill also 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.

SB312,,4 The people of the state of Wisconsin, represented in senate and assembly, do enact as follows:

SB312,1 Section 1. 66.0224 of the statutes is created to read:

SB312,,6 66.0224 Annexation of territory for which water or wastewater service is extended. Notwithstanding ss. 66.0217, 66.0219, 66.0221, and 66.0223, no territory for which water or sewerage services have been extended beyond a city’s or village’s municipal boundaries due to an immediate public health concern from an emerging contaminant may be annexed by the city or village that extended services for a period of 3 years following the completion of the extension project unless a number of qualified electors residing in the territory for which services have been extended and subject to the proposed annexation equal to at least two-thirds of the votes cast for governor in the territory at the last gubernatorial election vote to approve the annexation.

SB312,2 Section 2. 66.0811 (4) of the statutes is created to read:

SB312,,8 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 half of 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.

SB312,3 Section 3. 196.03 (7) of the statutes is created to read:

SB312,,10 196.03 (7) At the request of a water public utility or combined water and sewer public utility, the commission shall authorize a separate rate class of customers for those customers to whom water or combined water and sewer utility service was extended outside of the public utility’s service territory in response to a public health concern caused by contamination. The commission shall authorize higher rates for a class of customers authorized under this subsection than for other classes for the purpose of financing the extension of service to these customers. The commission shall allow the class of customers to remain in effect for 10 years or for the duration of any financing authorized to fund the extension of service to these customers, whichever is longer.

SB312,4 Section 4. 196.49 (7) of the statutes is created to read:

SB312,,12 196.49 (7) 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 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,,13 (a) 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, if in response to a contaminant for which there is an applicable state or federal standard, the contaminant exceeded or was close to exceeding that standard.

SB312,,14 (b) The public utility submits the appropriate application and supporting documentation to the commission no later than 6 months after the project was commenced.

SB312,,15 (c) The total cost of the project is not greater than $2,000,000 or 50 percent of the public utility’s reported total operating expenses for the previous year, whichever is less.

SB312,5 Section 5. 281.58 (8e) of the statutes is renumbered 281.58 (8e) (am).

SB312,6 Section 6. 281.58 (8e) (bm) of the statutes is created to read:

SB312,,18 281.58 (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 of 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.

SB312,7 Section 7. 281.61 (6) of the statutes is amended to read:

SB312,,20 281.61 (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 of 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.

SB312,8 Section 8. 281.75 (7) (c) 2. a. of the statutes is amended to read:

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

SB312,9 Section 9. 292.315 of the statutes is created to read:

SB312,,24 292.315 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.

SB312,,25 (2) Grants. The department shall provide all of the following grants:

SB312,,26 (a) Grants, provided in equal shares, 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 may not require the recipient of a grant under this paragraph to submit an application for a grant or provide any matching funds.

SB312,,27 (b) Grants, provided in equal shares not to exceed $1,800, to entities that are not municipalities and that are regulated as public 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,,28 (c) Grants to municipalities to test for PFAS levels at locations that are owned or managed by a municipality and where PFAS may be present, including airports, water systems, wastewater treatment facilities, or contaminated lands. 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,,29 (d) Grants to municipalities to dispose of PFAS-containing biosolids at facilities that accept such biosolids. 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,,30 (e) 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. The department shall accept applications for grants and provide grants under this paragraph on a rolling basis.

SB312,,31 (f) 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 applicant-owned contaminated lands or costs incurred by fire departments, including to replace PFAS-containing fire fighting foam. 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,,32 (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.

SB312,,33 (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.

SB312,10 Section 10. 292.32 of the statutes is created to read:

SB312,,35 292.32 Limitations on department actions relating to PFAS. (1) Definitions. In this section:

SB312,,36 (a) “Brownfield property” means abandoned, idle, or underused industrial or commercial facilities or sites, the expansion or redevelopment of which is adversely affected by actual or perceived environmental contamination.

SB312,,37 (b) “PFAS” has the meaning given in s. 292.315 (1).

SB312,,38 (c) “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.

SB312,,39 (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 that reasonably supports the belief that the property previously had a substantial amount of uncontained PFAS.

SB312,,40 (3) Construction projects. 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,,41 (a) The project poses a measurable risk to public health or welfare.

SB312,,42 (b) There is a substantial risk that the project would lead to worsening environmental conditions.

SB312,,43 (c) The entity proposing to complete the project is, as a result of negligence, responsible for the original contamination.

SB312,,44 (4) PFAS testing. In conducting testing for PFAS, the department shall comply with all of the following:

SB312,,45 (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.