6. Summary of, and Comparison with, Existing or Proposed Federal Statutes and Regulations:
The federal Defense Authorization Act of 2020 included several PFAS-related provisions, largely because PFAS contamination of water supplies has been identified at or around several military installations. The Act specifies in section 323 that PFAS-containing firefighting foam may only be released for purposes of an emergency response. A non-emergency release of PFAS foam may be made for the purposes of testing of equipment or training of personnel, if complete containment, capture, and proper disposal mechanisms are in place to ensure no foam is released into the environment. The Act requires the military to develop a fluorine-free foam specification by January 31, 2023 and sets a deadline for banning the use on military bases in the future.
The Defense Authorization Act also establishes guidelines for the proper disposal of firefighting foam at military sites and directs the military to develop guidance to address these issues. Specifically, all incineration of firefighting foam containing PFAS chemicals must be conducted at a temperature range adequate to break down PFAS chemicals, while also ensuring the maximum degree of reduction in emission of PFAS chemicals and must be conducted in accordance with the Clean Air Act at a facility permitted to receive the waste. The Act requires the Environmental Protection Agency (EPA) to publish interim guidance on the destruction and disposal of PFAS substances and materials, which is expected before the end of 2020.
The Federal Aviation Administration (FAA) Reauthorization Act of 2018 was passed on October 5, 2018 and states that no later than three years after the date of enactment, the FAA shall no longer require the use of fluorinated chemicals (found in PFAS) to meet the performance standards accepted under federal regulations. As a result of this change, the FAA and FAA-regulated facilities will no longer be required to use firefighting foams that contain PFAS.
State definitions of "environmental pollution" and "discharge" of a "hazardous substance" are not the same as the definition of a hazardous substance in the federal Superfund law and in some other states' laws. When discharged to the environment in Wisconsin, certain PFAS meet the definitions of a hazardous substance and/or environmental pollution under state statutes (s. 292.01, Wis. Stats.). There is no comparative federal law that specifically prohibits the use or discharge of firefighting foam that contains intentionally added PFAS. 7. Comparison with Similar Rules in Adjacent States: Illinois has legislation pending, SB3154, that would, on and after January 1, 2021, prohibit the knowing manufacture, sale, offering for sale, distribution for sale, or distribution for use of a Class B firefighting foam containing intentionally added PFAS. This legislation would also require manufacturers of Class B firefighting foam containing PFAS to register with the Illinois EPA and pay to the EPA an annual registration fee of $5,000. There is also separate legislation pending that would require the creation of groundwater quality standards to limit two PFAS, PFOA (perfluorooctanoic acid) and PFOS (perfluorooctanesulfonic acid) to 70 ppt combined or individually; and that directs the Department of Public Health to establish maximum contaminant levels (MCLs) in public water systems for PFOA and PFOS, and other PFAS.
Indiana’s House Bill 1189 was signed into law on March 30, 2020 and prohibits the use of Class B firefighting foam containing an intentionally added PFAS: (1) for training purposes; and (2) for testing purposes, unless the testing facility has implemented appropriate measures to prevent releases of the firefighting foam to the environment. Indiana also has non-binding guidance that sets screening levels for three PFAS per EPA’s health advisory level of 70 ppt.
As of January 2020, Iowa has a non-binding guidance “action plan” to identify and minimize PFAS exposures, prevent future releases, and provide education and outreach. HF 2241 failed to pass last session. HF 2241 would have prohibited the manufacture and sale of firefighting foam containing PFAS, prohibit the use of PFAS foam for training purposes, and require manufacturers of firefighter protective equipment to disclose the inclusion of PFAS in their products. Iowa DNR is developing a plan to assess risk to public water supplies from PFAS and may sample the higher risk facilities in the future.
Michigan has created by executive order a PFAS action team to identify, recommend, and implement responses to PFAS contamination. Three bills focused on fire departments and fire fighter activities have moved through the MI legislature: House Bill 4389 establishes a PFAS firefighting foam collection program at the Department of Environment, Great Lakes, and Energy (EGLE), and requires reporting of the use of firefighting foams within 48 hours including the following information: the purpose for the PFAS foam use, where it was used, how much was used, how much water was used, the brand and manufacturer of the product used, and the proposed process for cleanup and disposal. House Bill 4390 bars the use of PFAS firefighting foam in firefighting training, and requires proper training for the emergency use, handling, storage, disposal and cleanup of PFAS foam. House Bill 4391 calls for rulemaking to be promulgated by the Department of Labor to establish best practices for handling and storing PFAS foam by emergency responders, ban the use of PFAS foam for training purposes, and to end the use of PFAS foam for equipment calibration unless certain stringent conditions have been met.
Michigan recently announced it had collected and disposed of over 30,000 gallons of PFAS-containing firefighting foam through a clean sweep type program. Michigan recommends that fire departments use only Class A foam unless Class B foam is needed to protect human life or critical infrastructure, and that they train only with Class A foams.
Minnesota passed legislation that took effect July 1, 2020 requiring that any Class B firefighting foam containing PFAS that is used on a fire must be reported to the State Fire Reporting System within 24 hours. It also prohibits use of PFAS-containing firefighting foam for testing and training unless appropriate containment, treatment, and disposal measures are implemented to prevent releases of foam to the environment. Minnesota has not created additional guidance or rules to describe appropriate containment, treatment, and disposal measures. Minnesota also has non-binding guidance identifying maximum levels of PFBS, PFHxS, PFOS, and PFOA in drinking water.
Ohio has created a PFAS drinking water action plan and is testing all 1,500 public water systems for six PFAS and will notify residents about exposure risks.
8. Summary of Factual Data and Analytical Methodologies Used and How Any Related Findings Support the Regulatory Approach Chosen: The department is required by statute to promulgate rules to implement and administer s. 299.48, Wis. Stats., including to determine appropriate containment, treatment, and disposal or storage measures for foam testing facilities. The department reviewed extensive information from the Interstate Technology Regulatory Council (https://pfas-1.itrcweb.org/) that has developed fact sheets about PFAS and firefighting foam. Additional information was used from foam and PFAS guidance documents created by the U.S. Department of Defense, the National Fire Protection Association, the Commonwealth of Australia, and other states, including the Michigan PFAS Action Response Team. The department also discussed foam management issues with the WI State Fire Chiefs Association, WI Technical College staff (related to fire fighter and inspector training), the WI Airport Management Association, the WI Department of Safety and Professional Services staff, and colleagues in other states. Ancillary to this rule, existing statute and administrative code requires any person that causes the discharge of a hazardous substance to the environment, subject to s. 292.11 (9), Wis. Stats., to take the actions necessary to restore the environment to the extent practicable and minimize the harmful effects from the discharge to the air, lands or waters of this state as required by s. 292.11 (3), Wis. Stats. Persons responsible under s. 292.11 (3), Wis. Stats., for discharges of a hazardous substance to the environment shall follow the applicable requirements in chs. NR 700 to 754, Admin. Code, for response action sites. 9. Analysis and Supporting Documents Used to Determine the Effect on Small Business or in Preparation of an Economic Impact Report: In an effort to develop a conservative estimate, the department assumed a majority of business entities affected by the rule are small businesses. Emails and calls were made to industry experts and facilities with fixed foam systems to determine foam amounts; any existing containment, storage, treatment, and disposal activities; testing activities; and current and potential costs. Industry sectors were also contacted for comments on draft emergency rule language during rule development.
Additional comments on an EIA for the permanent rule will be solicited from potentially affected parties, which include three main types of sectors (that include small businesses and other businesses): entities using foam for emergency fire fighting or fire prevention operations including fixed fire suppression delivery systems or equipment; entities using foam for testing, including foam and foam equipment testing facilities that test firefighting foam effectiveness or test a firefighting foam delivery system or equipment; and entities that contain, treat, and dispose or store foam or foam contaminated materials from a testing facility or generated as a result of testing foam. The anticipated increased costs for these entities include paying for appropriate treatment and disposal of foam or foam contaminated materials in accordance with this rule.
10. Effect on Small Business (initial regulatory flexibility analysis): Small businesses impacted by this rule would be various facilities that use Class B firefighting foam in their fixed fire suppression systems, facilities that test foam, and facilities that provide storage, containment, treatment, or disposal services.
Storage: minimal additional economic impact expected; new requirements for facilities may lead to the purchase of additional storage/containers needed for foam, additional labor costs associated with labeling and inspection, and the purchase of materials to prevent discharge to the environment. There will be additional costs associated with these requirements but these costs are not anticipated to be significant. Direct economic estimates based on the types of storage, the expected storage volume, and labor costs will be solicited and evaluated by the department in advance of the permanent rule.
Containment, treatment and disposal: moderate economic impact expected, additional estimates under solicitation and evaluation by the department. It is estimated that there are approximately 150-200 fixed fire suppression systems within public and private facilities that utilize Class B firefighting foam. A limited survey of facilities with fixed-foam systems indicated that these fixed systems are primarily in areas with existing containment, resulting in minimal to no economic impact. Industry experts estimated that system testing and resultant foam disposal costs will increase for these facilities, and cost approximately $3,000 to $20,000 per facility. Assuming 200 facilities in the State, the statutory and rule requirements would range in impact from approximately $600,000 to $4,000,000 per year, with the midpoint estimate of $2,300,000. However, costs are expected to lessen over time with adoption of alternative methods such as surrogate and water equivalency testing and using replacement foams that do not contain PFAS.
Although they are not small businesses, the department is aware of only a few foam manufacturing facilities in Wisconsin that would conduct testing. One manufacturer is developing its own treatment facility and others may be using contractors to collect and manage foam generated from testing. The foam manufacturer building a new testing facility expressed to the department that it had plans to transition from manufacturing foam with PFAS, to manufacturing and testing foams that are PFAS-free.
For the purposes of this small business analysis, the department assumes two foam treatment facilities (contractors) will be active in Wisconsin that are small businesses. (One other treatment facility is a manufacturer of foam and is not a small business.) These treatment facilities will accept foam used for testing purposes and must appropriately store, contain, treat and dispose of the foam. To ensure appropriate treatment measures, the rule requires periodic sampling for detection of PFAS compounds that is estimated to cost around $300 per week or $15,600 per year. This sampling could total $31,200 per year; however, such sampling may already be occurring at these facilities. If that is the case, only a portion of the total of $31,200 would be attributable to the rule provisions.
Therefore, the estimated economic impact of this rule on small businesses is $2,331,200 per year with expected annual decreases as Class B firefighting foams that contain intentionally added PFAS are replaced in current applications with alternative fire suppression products.
Estimated costs for management, containment and proper disposal of firefighting foams with intentionally added PFAS, are anticipated to be less than the cost to clean and remediate uncontrolled discharges to the environment and subsequent remediation. This rule does not prohibit the manufacture, sale, or distribution of Class B firefighting foam that contains intentionally added PFAS.
11. Agency Contact Person: Kate Strom Hiorns; Department of Natural Resources, PO Box 7921,
12. Place where comments are to be submitted and deadline for submission:
Written comments may be submitted at the public hearings, by regular mail, or by email to:
Kate Strom Hiorns – WA/5
Department of Natural Resources
PO Box 7921
Madison, WI 53707-7921
(608) 261-8449
Section 1 NR 159 is created to read:
MANAGEMENT OF CLASS B FIREFIGHTING FOAM
NR 159.01 Purpose. The purpose of this chapter is to establish the appropriate containment, treatment, and disposal and storage measures when testing Class B firefighting foam with intentionally added perfluoroalkyl or polyfluoroalkyl substances (PFAS); to establish consistent, uniform standards and procedures to limit the discharge of Class B firefighting foams, unless the foam is used in emergency firefighting or fire prevention operations; and to clarify recordkeeping and notification requirements. This chapter is adopted under s. 299.48, Stats. NR 159.02 Applicability. (1) This chapter applies to any person conducting testing of foam with intentionally added PFAS, including calibration testing, conformance testing, or fixed-system testing, to evaluate its effectiveness or testing of a firefighting foam delivery system or equipment.
(2) This chapter applies to any person that uses or discharges foam containing intentionally added PFAS including use as part of an emergency firefighting or fire prevention operation.
(3) This chapter applies to any person that contains, treats, and disposes or stores foam or foam contaminated materials from a testing facility or generated as a result of testing foam.
(4) The prohibitions and requirements in this chapter apply to foam that is in concentrate or that is mixed with water, liquids or other substances. No person may discharge foam to a storm or sanitary sewer or to the environment unless the discharge meets the requirements of this chapter and the discharge is in accordance with all other applicable environmental regulations.
(5) This chapter may not be construed as prohibiting the manufacture, sale, or distribution of foam that contains intentionally added PFAS.
NR 159.03 Definitions. In this chapter:
(1) “Calibration testing” means the comparison of measurement values delivered by a device under testing with those of a calibration standard of known accuracy. These testing activities are typically associated with the installation, maintenance, and repair of emergency fire suppression and firefighting equipment.
(2) “Class B firefighting foam” has the meaning specified in s. 299.48 (1) (a), Stats. Note: Under s. 299.48 (1) (a), Stats., “Class B firefighting foam” means a foam designed for use on a flammable liquid fire, which may include a dual action Class A and B foam. (3) “Conformance testing” means testing or other activities that determine whether a process, product, or service complies with the requirements of a specification, technical standard, contract, or regulation.
(4) “Container” means any device in which a material is stored, transported, treated, disposed of, or otherwise handled.
(5) “Containment” means use of a container or secondary containment structure or device to keep foam under control or within boundaries.
(6) “Department” means the department of natural resources.
(7) “Discharge” has the meaning specified in s. 292.01 (3), Stats. Note: Under s. 292.01 (3), Stats., “discharge” means, but is not limited to, spilling, leaking, pumping, pouring, emitting, emptying or dumping. (8) “Dispose” or “disposal” means the discharge, deposit, injection, dumping or placing of any solid waste into or on any land or water.
(9) “Emergency firefighting” means the act of attempting to prevent the spread of and extinguish unwanted fires.
(10) “Environment” has the meaning specified in s. NR 700.03 (18). Note: Under s. NR 700.03 (18), “environment" means any plant, animal, natural resource, surface water (including underlying sediments and wetlands), groundwater, drinking water supply, land surface and subsurface strata, and ambient air within the state of Wisconsin or under the jurisdiction of the state of Wisconsin. (11) “Fire prevention operations” means measures and practices directed toward the prevention and suppression of unwanted fires.
