The statement of scope for this rule, SS 015-20, was approved by the Governor on March 20, 2020, published in Register No. 771B on March 30, 2020, and approved by the Natural Resources Board on June 24, 2020. This rule was approved by the Governor on November 25, 2020. ORDER OF THE STATE OF WISCONSIN NATURAL RESOURCES BOARD
CREATING RULES
The Wisconsin Natural Resources Board adopts an order to create NR 159 relating to regulating firefighting foam that contains certain contaminants and affecting small business. |
WA-06-20 (E)
Analysis Prepared by the Department of Natural Resources
3. Explanation of Agency Authority: Section 299.48, Wis. Stats., regulates the use of firefighting foam that contains intentionally added PFAS and grants rule-making authority to the department. Specifically, s. 299.48 (5), Wis. Stats., states that the department shall promulgate rules to implement and administer the section, including to determine appropriate containment, treatment, and disposal or storage measures for testing facilities. Section 2 of 2019 Wisconsin Act 101 states that the department shall promulgate rules under s. 299.48 (5), Wis. Stats., no later than the first day of the 7th month beginning after the effective date of the subsection. Emergency rules promulgated under this subsection remain in effect until three years after the effective date, or the date on which permanent rules take effect. Notwithstanding s. 227.24 (1) (a) and (3), Wis. Stats., the department is not required to provide evidence that promulgating a rule under this subsection as an emergency rule is necessary for the preservation of public peace, health, safety, or welfare and is not required to provide a finding of emergency for a rule promulgated under this subsection. Section 2(1) of Act 101 took effect on the day after publication, which was February 6, 2020. The department also has authority to promulgate rules under s. 227.11 (2)(a), Wis. Stats., necessary to effectuate the purpose of s. 299.48, Wis. Stats., requirements. 4. Related Statutes or Rules: Additional authority for pollution prevention activities is under s. 299.13, Wis. Stats.; and authority to require notification of a discharge of a hazardous substance, including firefighting foam that contains certain contaminants, under s. 292.11, Wis. Stats. 5. Plain Language Analysis: PFAS (perfluoroalkyl and polyfluoroalkyl substances) are a group of synthetic chemicals used in industry and consumer products worldwide since the 1950s. They do not break down in the environment for extremely long periods of time and they accumulate in the human body. Exposure to certain PFAS may cause adverse health effects.
2019 Wisconsin Act 101, codified in s. 299.48, Wis. Stats., prohibits the use of Class B and dual action Class A and B firefighting foams that contain intentionally added PFAS as of September 1, 2020, except in the following two situations:
When used as part of an emergency firefighting or fire prevention operation; or
When used for testing purposes at a testing facility that has implemented appropriate containment, treatment and disposal or storage measures to prevent discharges of the foam to the environment, and does not flush, drain or otherwise discharge the foam into a storm or sanitary sewer.Section 299.48(3m), Wis. Stats., requires notification to the department when PFAS-containing foams are discharged to the environment in the following two situations:
When PFAS-containing firefighting foam is used as part of an emergency firefighting or fire prevention operation, notify DNR immediately or as soon as practicable without hindering firefighting or fire prevention operations.
When PFAS-containing firefighting foam is used for testing purposes, notify DNR immediately of any discharge of the foam to the environment.This rule creates ch. NR 159 to implement the legislature’s directive to the department to promulgate rules to implement and administer s. 299.48, Wis. Stats. The proposed emergency rule contains the following summarized requirements: “Foam” is defined as Class B firefighting foam with intentionally added PFAS, as defined in s. 299.48 (1) (a), Stats. Prohibitions and use:
The use of Class B firefighting foams with intentionally added PFAS, including for training exercises, is prohibited. The use of foam is allowed for emergency firefighting, fire prevention operations, and testing purposes so long as certain requirements are met. The prohibitions and requirements in this chapter apply to foam that is in concentrate or that is mixed with water, liquids or other substances. Discharge of foam is prohibited 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.
Notification and recordkeeping:
The proposed emergency rule contains notification requirements for persons who use foam for firefighting operations or who discharge foam to the environment as part of testing operations. Any person in possession of foam must maintain records of the amounts of foam kept on site and its safety data sheets.
Storage:
Any person storing foam used for testing purposes shall manage the foam in accordance with safety data sheets and in a manner that will prevent discharges to the environment. This includes self-inspection and spill containment plans, use of leak-proof, closed and labeled containers, and provisions for cleanup of discharges.
Containment:
Any person testing foam, including testing foam effectiveness and fire suppression systems, foam delivery systems and associated equipment or vehicles, must contain the foam in a manner that will prevent discharge of the foam to the environment. This includes: containment that meets industry and national association testing standards; testing and flushing of equipment, systems, and facilities using a containment system capable of capturing, diverting, and storing generated foam; measures to prevent foam that escapes containment from entering surface waters, groundwater, storm sewers or sanitary sewers; and a containment system design that takes into account location and use of the foam, the risk to the environment, the automatic or manually activated design of a foam system, and any other applicable local, state, or federal regulations.
Treatment:
Any person choosing to treat foam in Wisconsin shall ensure treatment is conducted in a manner that will prevent a discharge of foam to the environment, i.e. air, lands or waters of the state. One option for treatment is incineration or thermal destruction, which must be able to destroy PFAS. Prior to operation, a person operating the treatment system must submit documentation to the department that demonstrates the incineration or thermal destruction treatment system can destroy PFAS and reduce or eliminate emissions, in accordance with the standards in the rule.
Other appropriate treatment options include treating foam using technologies specified in the rule, which state that before a person may discharge treated foam directly to waters of the state or to a sanitary sewer, specified technology must be employed that reduces PFAS concentrations to the maximum degree achievable. Appropriate treatment requires system design and operational standards to remove PFAS that include preliminary treatment, filtration, a minimum of three granular activated carbon adsorption units in series, and at least one anion-exchange resin polishing unit to remove trace PFAS compounds. This type of treatment system has been proven through research and real-life application in Wisconsin to remove optimum levels of PFAS. The department may, on a case-by-case basis, approve an alternative treatment technology – or modifications to the specified treatment – if the applicant can demonstrate that the proposed alternative treatment system or modification will achieve treatment equivalent to or better than the system specified in the rule.
The rule requires sampling and monitoring for 14 treatment indicator parameters to measure appropriate, effective removal of PFAS from foam, and allows an option to modify the required monitoring if approved by the department. The indicator parameters are not enforceable limitations under this chapter, but rather are triggers for making operational adjustments for continued effective treatment of PFAS in foam. All analytical sample results for PFAS must be retained for three years and made available to the department upon request. The frequency of sampling may be reduced after a year of data collection if approved by the department. Exceedance of the indicator parameters requires treatment operators to take actions, such as implementing operational changes to restore effective treatment or conduct additional sampling to determine if the exceedances were caused by sampling or laboratory errors.
Disposal:
Any person choosing to dispose of foam or foam contaminated materials generated as result of testing in Wisconsin shall ensure they are treated in accordance with this rule or solidified by mixing with cementitious materials or a comparable process prior to disposal to effectively immobilize the PFAS and restrict leaching or migration. Foam and foam contaminated materials that are disposed of in Wisconsin may only be disposed of at a licensed solid waste facility.
Additional measures for appropriate containment, treatment, and disposal or storage will be considered during the development of a permanent rule. The department will review the periodic sampling data from operators of foam treatment systems to evaluate the effectiveness of treatment specified in the emergency rule. That information will be used to help develop the permanent rule. Regarding the prevention of a discharge of air contaminants from the use of foam with intentionally added PFAS for testing purposes, the department has a process under s. 285.27 (2) (b), Wis. Stats., which may be used to further assess appropriate measures to be implemented in the permanent rule. The department’s work on the permanent rule is ongoing.
