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 (e.g., 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.
The 2021 PFAS Action Act was introduced on April 13, 2021. This bill proposes requiring the EPA to promulgate rules regarding proper storage and disposal of PFAS-containing materials and fluorinated foam, and also proposes issuing guidance on minimizing the use of or contact with fluorinated firefighting foam by first responders.
7. Comparison with Similar Rules in Neighboring States: Illinois had legislation proposed in 2020, SB3154, that would prohibit the knowing manufacture, sale, offering for sale, distribution for sale, or distribution for use of foam containing intentionally added PFAS. This legislation would also require manufacturers of foam containing intentionally added PFAS to register with the Illinois EPA and pay to the EPA an annual registration fee of $5,000. This legislation wasn’t voted upon but was re-introduced in 2021 as SB0561. Additional proposed firefighting foam-related legislation, HB5003, proposed prohibition of the use of foam containing intentionally-added PFAS for training purposes and also testing purposes, unless the facility has implemented appropriate containment, treatment and disposal measures. This legislation wasn’t voted upon but was re-introduced in 2021 as HB3635 and SB2512. Bill HB3190 was also introduced in 2021 and proposes prohibition of incineration of any PFAS substance, including AFFF firefighting foam. Indiana’s House Bill 1189 was signed into law on March 30, 2020 as IC 36-8-10.7 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. As of May 2021, 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. Several bills focused on fire departments and fire fighter activities have been passed by the MI legislature: Section 324.14705 establishes a PFAS firefighting foam collection program at the Department of Environment, Great Lakes, and Energy (EGLE). Section 324.14703 requires immediate reporting of the use of firefighting foams with intentionally added PFAS. Section 29.369c 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. Section 408.1014r 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 approximately 51,400 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 (Section 325F.072 of MN Statutes) 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 is currently working on guidance related to proper containment, treatment and disposal measures. As of January 2021, Arizona, Georgia, Indiana (as mentioned above), Kentucky, Maryland, Minnesota (as mentioned above), Virginia and Wisconsin have enacted legislation prohibiting the use of foam with intentionally added PFAS, with a testing exemption. Of those states, Arizona, Indiana, Maryland, Minnesota, Virginia and Wisconsin include the word “appropriate” regarding the measures needed for containment, treatment and disposal. Wisconsin is the only state that has directed an agency to conduct rulemaking regarding their PFAS-containing foam legislation. Wisconsin is the only state tasked with determining the “appropriate” measures to prevent discharges of PFAS-containing foam to the environment. New Hampshire’s ban on PFAS-containing foams included a provision that allowed for testing of class B foams only if evaluated by their department of environmental services. The New Hampshire legislature did not direct the department to promulgate criteria for determining such evaluation.
Washington, New York, and Colorado have prohibited the use of PFAS-containing foams with no exception for testing or emergency use and therefore have considerably more strict regulations than proposed in this permanent rule.
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 Wisconsin State Fire Chiefs Association, Wisconsin Technical College staff (related to fire fighter and inspector training), the Wisconsin Airport Management Association, the Wisconsin Department of Safety and Professional Services staff, and colleagues in other states. 2019 Wisconsin Act 101 required the department to promulgate an emergency rule (WA-06-20 (E)) regarding appropriate containment, treatment and disposal or storage measures to prevent discharges of foam to the environment at testing facilities that would be in effect until three years after the effective date of s. 299.48, Wis. Stats (February 7, 2023), or until a permanent rule takes effect. The emergency rule was approved by the Natural Resources Board on October 28, 2020. However, portions of the emergency rule were suspended by the Wisconsin Joint Committee for Review of Administrative Rules (JCRAR) on December 18, 2020. JCRAR indicated that the emergency rule exceeded statutory authority and failed to comply with legislative intent of Act 101. Legislation was also introduced (2021 AB13 and SB34) to prevent the department from promulgating the portions of the emergency rule that were suspended. This proposed permanent rule reflects the limited version of the emergency rule as suspended by JCRAR. 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 proposed permanent 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.
The estimated costs are based upon outreach conducted during the emergency rule writing process in 2020. Additional outreach will be conducted during the economic impact public comment period. The department has solicited additional input from the Wisconsin State Fire Chiefs Association regarding estimated costs to fire departments as a result of the rule. The portions of the emergency rule that were suspended by JCRAR have been omitted; the proposed permanent rule is consistent with the emergency rule in effect and is generally consistent with common business practices already in place.
10. Effect on Small Business (initial regulatory flexibility analysis): Small businesses impacted by this proposed permanent rule include 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 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.
