Storage: Minimal additional economic impact is 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.
Containment, treatment and disposal: A moderate economic impact is expected. Additional estimates are under solicitation and evaluation by the department. It is estimated that approximately 150-200 fixed fire suppression systems within public and private facilities utilize Class B firefighting foam. A 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. This is a high cost estimate because much of these costs are already being incurred as a result of s. 299.48, Wis. Stats, which prohibits discharging foam into a storm or sanitary sewer. 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.
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: Mimi Johnson; Department of Natural Resources, PO Box 7921,
13. Place where comments are to be submitted and deadline for submission:
Written comments may be submitted at the public hearings, by regular mail, or email to:
Mimi Johnson – RR/5
Department of Natural Resources
PO Box 7921
Madison, WI 53707-7921
(608) 590-7287
RULE TEXT
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 that contains intentionally added 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 that contains 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 that contains 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, disposes, or stores foam from a testing facility in Wisconsin or generated as a result of testing.
(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.
Note: Calibration testing is 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 or extinguishing 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 operation” means measures and practices directed toward the prevention and suppression of unwanted fires.
(12) “Fire suppression system” means a system used to extinguish or prevent the spread of fire through the application of a substance.
(13) “Fixed system” means a permanently installed fire suppression system designed for use on the specific fire hazards the system is expected to control or extinguish.
(14) "Foam" means class B firefighting foam as defined under s. 299.48 (1) (a), Stats. (15) “Foam that contains intentionally added PFAS” means foam in which PFAS is a constituent of the foam added during the manufacturing process.
(16) “Method detection limit” means the minimum measured concentration of a substance that can be reported with 99 percent confidence that the measured concentration is distinguishable from method blank results. The method detection limit is generated as defined in s. NR 149.03 (46). (17) “Person” has the meaning specified in s. 299.01 (10), Stats. Note: Under s. 299.01 (10), Stats., “person” means an individual, owner, operator, corporation, limited liability company, partnership, association, municipality, interstate agency, state agency, or federal agency. Note: Under s. 299.48 (1) (b), Stats., “PFAS” means a perfluoroalkyl or polyfluoroalkyl substance. (19) “Safety data sheet” means a document that contains safety and safe handling information in respect to the product, including protection information regarding human health, and may include information on protection of the environment.
(20) “Storage” means storing on a temporary basis for future use or future treatment or disposal in such a manner as not to constitute ultimate disposal.
Note: Under s. 299.48 (1) (c), Stats., “testing” means the testing of a firefighting foam to evaluate its effectiveness and testing of a firefighting foam delivery system or equipment. (22) “Training” has the meaning specified in s. 299.48 (1) (d), Stats. Note: Under s. 299.48 (1) (d), Stats., “training” means providing first-hand field experience to a person who may use a firefighting foam as part of an emergency firefighting or fire prevention operation. (23) “Treatment” means any method, technique, or process, including thermal destruction, that changes the physical, chemical, or biological character or composition of a contaminant.
NR 159.04 Prohibition and exemptions. (1) Except as provided under sub. (2), no person may use or otherwise discharge, including for training purposes, a class B firefighting foam that contains intentionally added PFAS.
(2) All of the following actions are exempt from the prohibition under sub. (1):
(a) The use or discharge by any person of a class B firefighting foam that contains intentionally added PFAS as part of an emergency firefighting or fire prevention operation.
(b) The use by any person of class B firefighting foam that contains intentionally added PFAS for testing purposes, including calibration testing, conformance testing, or fixed system testing, if the testing facility has implemented appropriate containment, treatment, and disposal or storage measures, as specified in ss. NR 159.06 to 159.08, to prevent discharges of the foam to the environment. Note: Under s. 299.48 (3) (b), Stats., appropriate containment, treatment, and disposal or storage measures may not include flushing, draining, or otherwise discharging foam into a storm or sanitary sewer. Note: A person responsible under s. 292.11 (3), Stats., for discharges of PFAS to the environment shall follow the applicable requirements in chs. NR 700 to 754 for response action sites. NR 159.05 Notification and recordkeeping. (1) Notification. A person that uses or discharges foam shall do all of the following:
(a) Notify the department of the use or discharge of foam as part of an emergency firefighting or fire prevention operation immediately or as soon as practicable without hindering emergency firefighting or fire prevention operations.
(b) Notify the department immediately of any discharge of foam to the environment resulting from testing purposes.
(2) Recordkeeping. Any person in possession of foam shall retain foam safety data sheets and make them available to the department for examination upon request.
NR 159.06 Storage. A person that uses foam for testing purposes shall store foam in accordance with manufacturer instructions and safety data sheets, and in a manner that shall prevent discharge of foam to the environment. A person that stores foam shall do all of the following:
(1) Establish and maintain a quarterly inspection program for detecting leaks in storage containers and a plan to undertake response measures to halt, contain, remove, treat, or dispose of foam discharges.
(2) Post safety data sheets in a visible location in the storage area.
(3) Clearly label all containers to indicate the contents of the container and keep containers in a manner that allows easy detection of signs of leakage.
(4) Store and transport foam in containers fabricated from or lined with materials compatible with foam and designed to prevent evaporation of foam, including containers direct from the manufacturer.
(5) Maintain material for absorbing any discharges of foam onsite.
(6) Block any drains in a storage area from any connection to a sanitary or storm sewer.
NR 159.07 Containment. A person that uses foam for testing purposes shall ensure that appropriate containment is in place during testing of foam or testing of fire suppression systems, foam delivery systems, or foam equipment to prevent discharge of foam to the environment. Appropriate containment shall include all of the following:
(1) Use of water or surrogate solutions; testing equipment indoors; spraying into drums, lined pits, or other containment equipment; and testing with closed-loop systems, when consistent with industry standards and other regulations governing foam testing.
Note: Other regulations may include chs. SPS 314 and 361 to 366, which incorporate standards of the national fire protection association, federal aviation administration requirements, and other applicable industry and national association standards.
