ORDER OF THE STATE OF WISCONSIN NATURAL RESOURCES BOARD
AMENDING AND CREATING RULES
The Wisconsin Natural Resources Board proposes an order to amend NR 140.10 Table 1, 140.16 (1) (d), 140.20 (2), and Table 3, 140.24 (3), and Appendix I to Table 1; and to create NR 140.20 (3) relating to setting numerical standards to minimize the concentration of polluting substances in groundwater (Cycle 10 Bacteria). |
DG-04-22
Analysis Prepared by the Department of Natural Resources
1. Statute Interpreted:
Sections 160.07, 160.15, 160.19, 281.15, 281.19(1), and 299.11, Wis. Stats., authorize the department to modify and create rules relating to development of numerical groundwater quality standards. 2. Statutory Authority:
3. Explanation of Agency Authority:
Chapter 160, Wis. Stats., establishes an administrative process for developing numerical state groundwater quality standards to be used as criteria for the protection of public health and welfare by all state groundwater regulatory programs. Chapter 160, Wis. Stats., directs the department to use this administrative process to establish numeric groundwater quality standards for substances of public health or welfare concern, found in, or having a reasonable probability of being detected in, the groundwater resources of the state. Specifically, s. 160.07(5), Wis. Stats., directs the department to propose rules reflecting the Wisconsin Department of Health Services (DHS) recommendations for enforcement standards, and s. 160.15(1), Wis. Stats., requires the department also promulgate preventative action limits for each substance with an enforcement standard. Under s. 160.15(3), Wis. Stats., the department has authority to establish by rule indicator parameters used to monitor certain regulated facilities. Section 281.15, Wis. Stats., states that the department shall promulgate rules setting standards of water quality, applicable to the waters of the state, that protect the public interest, including the protection of public health and welfare, and the present and prospective future use of such waters for public and private water systems. Section 281.19(1), Wis. Stats., grants the department the authority to issue general orders and adopt rules applicable throughout the state for the construction, installation, use and operation of practicable and available systems, methods and means for preventing and abating pollution of the waters of the state. In accordance with ch. 160, Wis. Stats., the reliability of sampling data is to be considered when determining the range of responses that a regulatory agency may take, or require, to address attainment or exceedance of a state groundwater quality standard at an applicable "point of standards application." Section 299.11, Wis. Stats., authorizes the department, in conjunction with the Department of Agriculture Trade and Consumer Protection (DATCP), to establish uniform minimum criteria for laboratories certified to conduct water analysis testing, and to establish accepted methodologies to be followed in conducting tests and sampling protocols and documentation procedures to be followed when collecting water samples for testing. 4. Related Statutes or Rules:
Section 281.12(1), Wis. Stats., grants the department general authority to carry out planning, management and regulatory programs necessary to protect, maintain and improve the quality and management of the waters of the state, ground and surface, public and private. Chapter 280, Wis. Stats., authorizes the department to prescribe, publish and enforce minimum standards and rules to be pursued in the obtaining of pure drinking water for human consumption. Chapter NR 809, Wis. Adm. Code, establishes minimum state drinking water standards for the protection of public health, safety and welfare. This administrative code contains numeric water quality protection standards applicable to public water supply systems in Wisconsin. Wisconsin state drinking water maximum contaminant levels (MCLs) have been established, in ch. NR 809, Wis. Adm. Code, for Escherichia coli (E. coli) bacteria. 5. Plain Language Analysis:
Chapter 160, Wis. Stats., is Wisconsin’s Groundwater Standards Protection law. This chapter requires the department to develop numerical groundwater quality standards, consisting of enforcement standards and preventive action limits. Chapter NR 140, Wis. Adm. Code, establishes groundwater standards. Proposed amendments to ch. NR 140, Wis. Adm. Code, add new groundwater quality standards for Escherichia coli (E. coli) bacteria. E. coli bacteria is a type of coliform bacteria used as an indicator of fecal contamination in groundwater. Groundwater quality standards currently exist in ch. NR 140 for total coliform bacteria. The department is proposing to revise the status of total coliform bacteria in ch. NR 140 to make it an indicator parameter. Minor revisions, to clarify rule language and update rule reference information, are also proposed to ch. NR 140, Wis. Adm. Code. These revisions include: •
Revising order of Antimony and Anthracene in s. NR 140.10, Table 1 to correct their alphabetical order in the table.•
Removing, in s. NR 140.20, Table 3, the indicator parameter for ammonia nitrogen. Health standards were established for ammonia (as N), in s. NR 140.10, Table 1, as part of the "Cycle 9" revisions to ch. NR 140.•
Making needed additions and revisions to ch. NR 140 Appendix I to Table 1 substance names, Chemical Abstracts Service (CAS) registry numbers, and common synonyms.6. Summary of, and Comparison with, Existing or Proposed Federal Statutes and Regulations:
The U.S. Environmental Protection Agency (US EPA) establishes health-based drinking water maximum contaminant levels (MCLs) that are used to assess the quality of groundwater drinking water supplies. Federal drinking water MCLs are established based on scientific risk assessments and, in some cases, economic and technological considerations.
Under the federal Revised Total Coliform Rule (RTCR), the US EPA changed the regulatory status of total coliform bacteria in public drinking water systems. EPA replaced the maximum contaminant level (MCL) violation for total coliform bacteria with a treatment technique requirement and established an MCL for Escherichia coli (E. coli) bacteria. Total coliform bacteria include bacteria that naturally occur in the environment, and total coliform are, with a few exceptions, not harmful to humans. Under the RTCR, detection of total coliform bacteria is used as an indicator of possible microbial pathways into a public drinking water system. The RTCR includes a "treatment technique" response for detection of total coliform bacteria in a water supply system. This response requires investigation of the sanitary condition of the system, and action to correct any defects found. E. coli bacteria are a sub-group of coliform bacteria considered to be a more specific indicator of fecal contamination and the potential for pathogens to be present in drinking water. Under the RTCR, detection of E. coli bacteria in a public water supply system is an MCL violation.
7. If Held, Summary of Comments Received During Preliminary Comment Period
and at Public Hearing on the Statement of Scope:
A preliminary public hearing on Statement of Scope SS 021-22, related to revisions to ch. NR 140, was held on April 22, 2022. Comments on the proposed scope were accepted through April 22, 2022. One comment was received requesting the department revise the scope statement to specify that only the substances Escherichia coli (E. coli) bacteria and total coliform bacteria would be addressed under this rulemaking. 8. Comparison with Similar Rules in Adjacent States:
Minnesota, Michigan, Illinois, and Iowa use groundwater protection values/levels/standards in their regulation of practices and activities that might impact the quality of groundwater. Minnesota, Michigan, and Illinois have not established individual state groundwater protection standards for total coliform or E. coli bacteria but, because bacteria are present everywhere in the environment, including groundwater, these states all recommend regular testing of private drinking water supply wells for total coliform bacteria (which includes E. coli bacteria). Iowa uses established federal standards (such as federal drinking water MCLs) as its state groundwater protection standards. In accordance with Iowa Environmental Protection Regulations 567 IAC Chapter 133, Iowa uses established federal drinking water MCLs as "Action Levels" in its regulation of practices and activities that may adversely impact groundwater quality. Federal drinking water MCLs have been established for E. coli bacteria. 9. Summary of Factual Data and Analytical Methodologies Used and How Any Related Findings Support the Regulatory Approach Chosen:
In accordance with s. 160.07, Wis. Stats., the department is required, for substances of public health concern, to propose rules establishing recommendations from DHS as state groundwater quality enforcement standards. In accordance with s. 160.15, Wis. Stats., the department is required to establish by rule a preventive action limit for each substance for which an enforcement standard is established. To develop proposed groundwater standards, DHS follows the process described in ss. 160.07 to 160.17, Wis. Stats. This includes a review of federal numbers, state drinking water standards, and acceptable daily intake values from the EPA, research studies and a search of peer-reviewed scientific research. DHS then develops a scientific support document describing the findings of their review and basis for the recommended proposed groundwater standards. DHS provided the department, in a document titled, Recommended Public Health Groundwater Quality Standards, Scientific Support Documents for "Cycle 10" Substances, January 2022, its recommendations for groundwater quality standards for the protection of public health. DHS recommended new standards for 17 substances: perfluorooctanoic acid (PFOA), perfluorooctane sulfonate (PFOS), hexavalent chromium, strontium, thiamethoxam, imidacloprid, clothianidin, isoxaflutole, isoxaflutole DKN degradate, isoxaflutole BA degradate, thiencarbazone-methyl, Dacthal TPA and MTP degradates, glyphosate, glyphosate aminomethylphosphonic acid (AMPA) degradate, sulfentrazone, and Escherichia coli (E. coli) bacteria.
DHS also provided recommendations for revisions to existing public health related state groundwater quality standards for 8 additional substances: trichloroethylene (TCE), tetrachloroethylene (PCE), 1,2,3-trichloropropane (1,2,3-TCP), 1,4-dioxane, aluminum, boron, molybdenum and cobalt.
In 2019, the department began rulemaking for all “Cycle 10” substances, including E. coli. The scope statement for that rulemaking effort expired in March 2022 without the rule being promulgated.
In this rule, the department is proposing establishing the DHS enforcement standard recommendations and accompanying preventive action limit for Escherichia coli (E. coli) bacteria in ch. NR 140, Wis. Adm. Code, state groundwater quality protection standards. The department is also proposing to remove the enforcement standard for total coliform bacteria and replace it with an indicator parameter preventative action limit, per s. 160.15(3), Wis. Stats. 10. Analysis and Supporting Documents Used to Determine the Effect on Small Business or in Preparation of an Economic Impact Report:
Chapter NR 140 is not a self-implementing administrative rule and is independent from the regulatory programs that contain actions, requirements, responses, and enforcement mechanisms for the various activities or facilities they regulate. The cost of implementation and compliance for groundwater standards is dictated entirely by the regulatory agencies and their numerous regulatory programs based on authority outside of ch. NR 140, Wis. Adm. Code. Implementation and compliance costs for regulatory agencies may change after they complete their statutorily required review of new or amended groundwater standards and, if necessary, amend or create administrative rules to ensure compliance with new groundwater standards. The department does not anticipate any economic impacts related to establishing groundwater quality standards for E. coli bacteria or revising the status of total coliform bacteria in ch. NR 140, Wis. Adm. Code, to make it an indicator parameter. An exceedance of the E. coli bacteria standard is already an exceedance of the existing total coliform bacteria standard in ch. NR 140, Wis. Adm. Code. Therefore, the department calculates that the proposed amendments will result in decreased costs compared to the current rule, as a smaller subset of groundwater that currently tests positive for total coliform bacteria will end up testing positive for E. coli bacteria. 11. Effect on Small Business (initial regulatory flexibility analysis):
The department does not anticipate that this rule will impact any specific business or business sector.
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:
Bruce Rheineck – DG/5
Department of Natural Resources
101 S. Webster Street, Madison, WI 53703
Comments may be submitted to the department contact person listed above or to DNRAdministrativeRulesComments@wisconsin.gov until the deadline given in the upcoming notice of public hearing. The notice of public hearing and deadline for submitting comments will be published in the Wisconsin Administrative Register and on the department’s website, at https://dnr.wi.gov/calendar/hearings/. Comments may also be submitted through the Wisconsin Administrative Rules Website at https://docs.legis.wisconsin.gov/code/chr/active. RULE TEXT
