Under current law, a public utility may not engage in certain construction, expansion, or other projects unless the Public Service Commission grants a certificate of authority (CA) for the proposed project. Under the bill, if a water public utility or a combined water and sewer public utility (water utility) fails to obtain a CA before commencing a project for which one is required, PSC may not investigate, impose a penalty against, or bring an action to enjoin the water utility if 1) the water utility undertook the project in response to a public health concern caused by PFAS, the presence of which was unknown to the water utility until shortly before it commenced the project, and the water utility provides evidence showing that the utility has exceeded or is likely to exceed the applicable state or federal standard for that type of PFAS; 2) the water utility promptly notifies PSC of the work and, within 30 days after commencing the work, submits the appropriate application and supporting documentation to PSC; and 3) the total cost of the project is not greater than $2,000,000.

In the PSC administrative code, the bill adds an emergency resulting from water supply contamination to the circumstances under which PSC authorization is not necessary prior to a utility beginning necessary repair work. The current administrative code limits this to an emergency resulting from the failure of power supply or from fire, storm, or similar events.

Use of revenue for PFAS source reduction measures

The bill authorizes a municipal public utility or metropolitan sewerage district to use revenues from its water or sewerage services for up to half of the cost of pretreatment or other PFAS source reduction measures for an interconnected customer or other regular customer if the costs incurred are less than the costs of the upgrades otherwise required at the endpoint treatment facility and if the costs are approved by the governing body of the municipality or the metropolitan sewerage district.

Test wells for community water systems

Under rules promulgated by DNR relating to community water systems (a system for providing piped water for human consumption to the public and that serves at least 15 service connections used by year-round residents or regularly serves at least 25 year-round residents), DNR must preapprove any test wells that will be converted into permanent wells and any test wells that will pump at least 70 gallons per minute for more than 72 hours. DNR rules require test wells to be drilled for permanent wells for community water systems to determine geologic formation information and water quality and quantity data. DNR rules also allow DNR to designate special well casing depth areas within which wells must be drilled to a greater depth and meet other requirements to avoid contamination.

This bill provides that test wells for community water systems must also be approved by DNR if they are located in special well casing depth areas that have been designated based in whole or in part on the presence of PFAS.

The people of the state of Wisconsin, represented in senate and assembly, do enact as follows:

AB131,1 Section 1. 66.0811 (4) of the statutes is created to read:

AB131,2,9 66.0811 (4) Notwithstanding subs. (2) and (3) and s. 66.0901 (11), a municipal public utility or a metropolitan sewerage district created under ch. 200 may use funds derived from its water or sewerage services for up to one-half the cost of pretreatment or other perfluoroalkyl and polyfluoroalkyl substances source reduction measures for an interconnected customer or other regular customer if the costs incurred are less than the costs of the upgrades otherwise required at the endpoint treatment facility and if the costs are approved by the governing body of the municipality or the metropolitan sewerage district.

AB131,2 Section 2. 196.49 (7) of the statutes is created to read:

AB131,2,15 196.49 (7) With respect to a water public utility or a combined water and sewer public utility, the commission may not investigate, impose a penalty against, or bring an action to enjoin the public utility for failing to obtain a certificate of authority before commencing a project for which one is required under this section if all of the following apply:

AB131,2,20 (a) The public utility undertook the project in response to a public health concern caused by PFAS, as defined in s. 292.315 (1), the presence of which was unknown to the public utility until shortly before it commenced the project, and the public utility provides evidence showing that the utility has exceeded or is likely to exceed the applicable promulgated state or federal standard for that type of PFAS.

AB131,3,3 (b) The public utility promptly notifies the commission of the work and, within 30 days after commencing the work, submits the appropriate application and supporting documentation to the commission.

AB131,3,4 (c) The total cost of the project is not greater than $2,000,000.

AB131,3 Section 3. 281.58 (8e) of the statutes is renumbered 281.58 (8e) (am).

AB131,4 Section 4. 281.58 (8e) (bm) of the statutes is created to read:

AB131,3,15 281.58 (8e) (bm) If the department, when ranking projects under this subsection or determining an applicant’s eligibility for assistance under this section, considers whether an applicant that intends to extend service outside the boundaries of a municipality because of water contamination is small or disadvantaged, the department shall, to the extent allowable under federal law, determine the applicant to be small or disadvantaged if the area receiving the extended service would normally be determined to be small or disadvantaged, regardless of whether the existing service area would normally be determined to be small or disadvantaged.

AB131,5 Section 5. 281.61 (6) of the statutes is amended to read:

AB131,4,12 281.61 (6) Priority list. The department shall establish a priority list that ranks each safe drinking water loan program project. The department shall promulgate rules for determining project rankings that, to the extent possible, give priority to projects that address the most serious risks to human health, that are necessary to ensure compliance with the Safe Drinking Water Act, 42 USC 300f to 300j-26, and that assist applicants that are most in need on a per household basis, according to affordability criteria specified in the rules. For the purpose of ranking projects under this subsection, the department shall treat a project to upgrade a public water system to provide continuous disinfection of the water that it distributes as if the public water system were a surface water system that federal law requires to provide continuous disinfection. If the department, when ranking projects under this subsection or determining an applicant’s eligibility for assistance under this section, considers whether an applicant that intends to extend service outside the boundaries of a local governmental unit because of water contamination is small or disadvantaged, the department shall, to the extent allowable under federal law, determine the applicant to be small or disadvantaged if the area receiving the extended service would normally be determined to be small or disadvantaged, regardless of whether the existing service area would normally be determined to be small or disadvantaged.

AB131,6 Section 6. 281.75 (5m) of the statutes is created to read:

AB131,4,21 281.75 (5m) Referral to the innocent landowner grant program. If the department determines that a claimant that submits a claim under this section on the basis of contamination by perfluoroalkyl or polyfluoroalkyl substances would be eligible for a grant under the innocent landowner grant program under s. 292.34, and moneys are available under s. 292.34, the department shall refer the claim to the program under s. 292.34 instead of reviewing the claim under this section. If the claimant’s claim is denied under s. 292.34, the department shall refer the claim back to the program under this section.

AB131,7 Section 7. 281.75 (7) (c) 2. a. of the statutes is amended to read:

AB131,5,2 281.75 (7) (c) 2. a. Equipment used for treating the water, including a filtration device and up to 2 replacement filters;

AB131,8 Section 8. 292.11 (9) (g) of the statutes is created to read:

AB131,5,5 292.11 (9) (g) 1. In this section, “PFAS” means any perfluoroalkyl or polyfluoroalkyl substance.

AB131,5,9 2. All of the persons eligible for an innocent landowner grant under s. 292.34 (3) (a) to (e) are exempt from subs. (3), (4), and (7) (b) and (c) with respect to PFAS contamination if the person grants permission to the department to remediate the land at the department’s expense.

AB131,5,16 3. A person not otherwise exempt under subd. 2. is exempt from subs. (3), (4), and (7) (b) and (c) with respect to PFAS contamination based on the results of PFAS testing on samples taken from lands not owned by the state, unless that testing demonstrates that PFAS levels violate any applicable state or federal law, including any standard promulgated under state or federal law. This subdivision does not limit the ability of a landowner or other authorized party to voluntarily take remedial action based on PFAS test results collected by the department.