The statement of scope for this rule, SS 091-19, was approved by the Governor on August 27, 2019, published in Register No. 765A1 on September 3, 2019, and approved by the Natural Resources Board on January 22, 2020. This rule was approved by the Governor on insert date. ORDER OF THE STATE OF WISCONSIN NATURAL RESOURCES BOARD
AMENDING AND CREATING RULES
The Wisconsin Natural Resources Board proposes an order to amend NR 219.04 Table F; and to create NR 102.03 (4e) and (4m), 102.04 (1m) and (8) (d), 105.04 (4m), 106 Subchapter VIII, 219.04 (1) (Note) and Table F (Note), relating to adding narrative surface water criteria with numeric thresholds and analytical methods for poly- and perfluoroalkyl substances (PFAS) including PFOS and PFOA for the purpose of protecting public health as well as revisions to the procedures in the Wisconsin Pollutant Discharge Elimination System (“WPDES”) permitting program to implement the new water quality criteria and affecting small business. |
WY-23-19
Analysis Prepared by the Department of Natural Resources
1-3. Statutory Authority, Statutes Interpreted, and Explanation of Agency Authority:
The statutory authority for developing PFAS surface water quality standards for human health protection and for developing factors for listing waters as impaired for PFAS is as follows:
- Section 281.12, Wis. Stats., grants the department general supervision and control to carry out the planning, management, and regulatory programs necessary for prevention/reduction of water pollution and for improvement of water quality. - Section 281.13(1)(a) and (b), Wis. Stats., give the department the authority to create rules to research and assess water quality in the state. - Section 281.15, Wis. Stats., mandates that the department promulgate water quality standards, including water quality criteria and designated uses. It recognizes that different use categories and criteria are appropriate for different types of waterbodies, and that the department shall establish criteria which are not more stringent than reasonably necessary to ensure attainment of the designated use for the waterbodies. - Section 281.65(4)(c) and (cd), Wis. Stats., directs the department to prepare a list of impaired waters. - Section 227.11(2), Wis. Stats., provides the department with the authority to promulgate rules that are necessary to administer the specific statutory directives in ch. 281, Wis. Stats. The statutory authority to promulgate Wisconsin Pollutant Discharge Elimination System (WPDES) permitting procedures to implement the new standards is as follows:
- Section 283.13(5), Wis. Stats., states that the department shall establish more stringent limitations than required under subs (3) and (4) when necessary to comply with water quality standards. - Section 283.31(3) and (4), Wis. Stats., state that the department may issue a permit upon condition that the permit contains limitations necessary to comply with any applicable federal law or regulation, state water quality standards, and total maximum daily loads. - Section 283.37, Wis. Stats., gives the department authority to promulgate rules regarding permit applications. - Section 283.55, Wis. Stats., gives the department authority to impose monitoring and reporting requirements. - Section 283.83, Wis. Stats., requires that the department establish a continuing planning process and that plans shall include implementation procedures including compliance schedule for new water quality standards. - Section 227.11(2), Wis. Stats., provides the department with the authority to promulgate rules that are necessary to administer the specific statutory directives in ch. 283, Wis. Stats. 4. Related Statutes or Rules:
The proposed rules are related to three other sets of rules currently in progress:
Rule package DG-15-19 is proposing to establish groundwater standards for several compounds including PFOS and PFOA for the protection of human health.
Rule package DG-24-19 is proposing drinking water maximum contaminant levels (MCLs) for PFOS & PFOA.
Rule package WA-07-20 is proposing to regulate class B firefighting foams containing PFAS.
Rule package WY-23-13 is proposing revisions to ch. NR102, Wis. Adm. Code, in order to add text regarding waterbody assessments and biological thresholds, which are topics unrelated to this rule but may affect numbering for this rule package. With regard to existing regulations, these proposed rules relate to surface water quality standards and the WPDES permit program. Related rules include chs. NR 102, 104, 105, and 106 Wis. Adm. Code, which contain Wisconsin’s surface water quality standards and their application, and chs. NR 200 to 299, Wis. Adm. Code., which contain requirements for the WPDES permit program. Chapter 283, Wis. Stats., contains the statutory authority and requirements for the WPDES permit program. 5. Plain Language Analysis:
Poly- and perfluoroalkyl substances (PFAS) are human-made, organic compounds that have been manufactured for use in non-stick coatings, waterproof fabrics, firefighting foams, food packaging, and many other applications since the 1940s. PFAS are highly resistant to degradation and have been detected globally in water, sediment, and wildlife. This global distribution is of concern as PFAS have documented toxicity to animals and because epidemiological studies have suggested probable links to several human health effects. In Wisconsin, PFAS have been detected in drinking and surface water near sources of industrial use or manufacture and near spill locations. Perfluorooctane sulfonate (PFOS) has been found in fish tissue resulting in the issuance of special fish consumption advisories for some surface waters in the state.
The proposed rules include a water quality standard for two types of PFAS: PFOS and perfluorooctanoic acid (PFOA). Under the Clean Water Act, surface water quality standards can include criteria that are either numeric or narrative. Wisconsin’s existing Administrative Codes contain both numeric and narrative criteria for toxic substances:
- Chapter NR 105, Wis. Adm. Code, contains specific numeric criteria for numerous toxic pollutants as well as formulas for calculating numeric criteria for toxics that do not yet have promulgated criteria. - Section NR 102.04(d), Wis. Adm. Code, contains Wisconsin’s narrative criteria for toxics. This existing rule states that substances in concentrations or combinations which are toxic or harmful to humans shall not be present in amounts found to be of public health significance [emphasis added], nor shall substances be present in amounts which are acutely harmful to animal, plant or aquatic life. - The proposed PFOS and PFOA standard interprets Wisconsin’s existing narrative criterion with numeric thresholds, created under s. NR 105.04(4m) and s. NR 102.04, Wis. Adm. Code. The proposed rule defines levels of public health significance for the two types of PFAS based on preventing adverse effects from contact with or ingestion of surface waters of the state, or from ingestion of fish taken from waters of the state. - For PFOS, the proposed level of public health significance is 8 ng/L for all waters except those that cannot naturally support fish and do not have downstream waters that support fish.
- For PFOA, the proposed level of public health significance is 20 ng/L in waters classified as public water supplies under ch. NR 104, and 95 ng/L for other surface waters. Related to the proposed PFOS and PFOA standard, the proposed rule also includes assessment protocols that clarify when a surface water that contains levels of PFOS or PFOA above the public health significance threshold levels in the narrative standard should be listed on the state’s impaired waters list.
Additionally, this rule includes revisions to ch. NR 106, Wis. Adm. Code, that address WPDES permit implementation procedures for the new PFOS and PFOA standard. With regard to permit implementation of the narrative criteria, DNR is proposing source reduction as a first step toward reducing levels of PFOS and PFOA in the effluent rather than requiring treatment up front because source reduction is the most cost effective approach to reducing or eliminating PFOS and PFOA in wastewater discharges and it avoids the generation of contaminated carbon filters from treatment systems which will contain higher levels of PFOA and PFOS that will have to be disposed of in a safe manner. The proposed rule establishes WPDES permit requirements for PFOS and PFOA discharges to surface waters of the state, in ch. NR 106 – Subchapter VIII, Wis Adm. Code, including: the determination of the need for a PFAS Minimization Plan based on data generation in a reissued permit, a general schedule for PFAS Minimization Plan permit implementation procedures, and PFAS Minimization Plan requirements. The proposed permit requirements include standard PFOS and PFOA sampling frequencies for categories of permitted dischargers. If the department does not believe that PFOS or PFOA is present in a permittee’s discharge, sampling may be waived. Based on the effluent data collected, the proposed rule establishes procedures for determining whether a permitted facility’s discharge contains PFOS or PFOA at levels that have the reasonable potential to cause or contribute to an exceedance of the PFOS or PFOA standard. For permitted facilities that have the reasonable potential to exceed the PFOS or PFOA standard, the proposed rule requires that the permittee develop and implement a PFAS Minimization Plan in accordance with the timelines in the rule and WPDES permit schedule. The permittee must also continue sampling for PFOS and PFOA. It is expected that for nearly all WPDES permitted facilities with discharges to surface waters as well as industrial facilities that discharge wastewater to publicly owned treatment plants, source reduction actions outlined in minimization plans will reduce PFOS and PFOA discharges to levels that are below the public health thresholds in standard. Because past pollutant minimization plans for other similar pollutants such as mercury have been shown to result in a 43% percent (median) reduction in effluent concentrations and based on relatively low initial concentrations of PFOS and PFOA observed in permittees’ effluents, the department predicts that only a couple of industrial facilities (indirect dischargers) in the state will eventually have to install treatment to comply with the PFOS and PFOA standard. In these cases, the proposed rule allows a compliance schedule for installation of treatment technology.
