The statement of scope for this rule, SS 089-19, 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 March 2, 2022. ORDER OF THE STATE OF WISCONSIN NATURAL RESOURCES BOARD
RENUMBERING AND AMENDING, AMENDING AND CREATING RULES
The Wisconsin Natural Resources Board adopts an order to renumber and amend NR 809.205 (3), (4) and (5); to amend NR 809.20 (1) Table, 809.203 (1) Table, (2) Table CM and (4) Table D, 809.205 (2) (intro.), (a), (b) (intro.) and 1. and 2., and (6) (c), Appendix A to Subchapter V and Appendix A to Subchapter VII; and to create NR 809.04 (59h), 809.20 (2) (d), and 809.205 (1g) and (1r), relating to the promulgation of new drinking water maximum contaminant levels for Per- and Polyfluoroalkyl Substances (PFAS) including Perfluorooctanesulfonic acid (PFOS) and Perfluorooctanoic acid (PFOA) and affecting small business. |
DG-24-19
Analysis Prepared by the Department of Natural Resources
1. Statute Interpreted: Chapters 280 and 281, Wis. Stats. 2. Statutory Authority: Chapters 280 and 281, Wis. Stats., including sections 280.11 and 281.17(8), Wis. Stats. 3. Explanation of Agency Authority: Section 280.11, Wis. Stats. – The department shall, after a public hearing, prescribe, publish, and enforce minimum reasonable standards and rules and regulations for methods to be pursued in the obtaining of pure drinking water for human consumption and the establishing of all safeguards deemed necessary in protecting the public health against the hazards of polluted sources of impure water supplies intended for human consumption. Section 281.17(8), Wis. Stats. – The department may establish, administer, and maintain a safe drinking water program no less stringent than the requirements of the safe drinking water act, 42 USC 300f to 300j-26. 4. Related Statutes or Rules: Chapter NR 809, Wis. Adm. Code – Safe Drinking Water, establishes minimum standards and procedures for the protection of the public health, safety and welfare in the obtaining of safe drinking water. 5. Plain Language Analysis: The objective of the proposed rule is to amend ch. NR 809, Wis. Adm. Code, to establish drinking water standards, referred to as Maximum Contaminant Levels (MCLs), for certain Per- and Polyfluoroalkyl substances (PFAS) including the contaminant compounds perfluorooctanoic acid (PFOA) and perfluorooctane sulfonic acid (PFOS). The MCL standards for PFOS and PFOA are based on the U.S. Environmental Protection Agency (EPA) PFOA and PFOS Health Advisory Level (HAL) and are set at 0.000070 mg/L (70 parts per trillion (ppt)) for PFOA and PFOS individually and a combined standard of 0.000027 mg/L (70 ppt). The proposed rule establishes initial and routine monitoring cycles for community and non-transient non-community public water systems to test for PFOA and PFOS and establishes approved methodology for PFOA and PFOS sampling. The proposed rule also creates a waiver application process for systems to waive routine monitoring under certain conditions. Systems that exceed the MCL standards for PFOA and PFOS will be required to take measures to return to compliance, which may include drilling a new well or installing a treatment system.
The EPA and numerous states, including Wisconsin, have identified PFAS as a persistent contaminant that threatens the environment, including surface water and groundwater resources. PFAS in surface water and groundwater sources is a threat to public health, welfare and safety in obtaining drinking water. Establishing drinking water standards for certain PFAS contaminants in this rule will protect public health by setting MCLs that may not be exceeded. If MCLs are exceeded, a corrective action plan must be implemented to maintain protection of public health, welfare and safety in drinking water.
PFOA and PFOS health effects references include the following:
• ATSDR, Toxicological Profile for Perfluoroalkyls, 2021.
• U.S. EPA, Drinking Water Health Advisory for Perfluorooctanoic Acid (PFOA), 2016.
• U.S. EPA, Health Effects Support Document for Perfluorooctanoic Acid (PFOA), 2016.
• U.S. EPA, Drinking Water Health Advisory for Perfluorooctane Sulfonate (PFOS), 2016.
• U.S. EPA, Health Effects Support Document for Perfluorooctane Sulfonate (PFOS), 2016
• IARC, Monograph on the Identification of Carcinogenic Hazards to Humans: Perfluorooctanoic
Acid (PFOA), 2018.
6. Summary of, and Comparison with, Existing or Proposed Federal Statutes and Regulations: The process for the proposed amendment to ch. NR 809, Wis. Adm. Code, to establish certain MCLs for PFAS, including PFOA and PFOS standards, is consistent with the process for establishing rules for other drinking water contaminants regulated under the federal EPA Safe Drinking Water Act, specifically Title 40 - Protection of the Environment; Chapter 1 - Environmental Protection Agency; Subchapter D - Water Programs. The department has a primacy agreement with the EPA to implement the Safe Drinking Water Act. As a result of the PFOA and PFOS findings from EPA’s Unregulated Contaminant Monitoring Rule 3 (UCMR 3) national monitoring of public water supply systems, the EPA issued a PFOA and PFOS HAL in 2016. The PFOA and PFOS HAL was established based upon laboratory animal and epidemiological human studies indicating adverse health effects related to PFOA and PFOS exposure. Adverse health effects included developmental effects of fetuses during pregnancy or to breastfed infants, cancer, liver effects, immune effects and thyroid effects and other health effects.
In February 2019, the EPA released a Per- and Polyflouralkyl Substances (PFAS) Action Plan. One of the four primary actions in the PFAS Action Plan is initiating steps to evaluate the need for an MCL as part of the Safe Drinking Water Act. The EPA is evaluating criteria to propose a national drinking water regulatory determination for PFOA and PFOS. The EPA is highlighting key PFOA and PFOS information gathered to date and additional data needs. The EPA issued a final determination in January, 2021 that they will establish an MCL for PFOA and PFOS, a federal regulatory process that will take several years and would not take effect in Wisconsin until three years after the federal MCL is established.
7. If Held, Summary of Comments Received During Preliminary Comment Period
and at Public Hearing on the Statement of Scope:
American Forest and Paper Association | Oppose | |
Bill and Cindy Verschay, citizens | Support | |
Bob and Anne Maley, citizens | Support | |
Capital Area Regional Planning Commission | Support | |
Casey Hicks, citizen | Support | |
Christine Simpson, citizen | Support | |
Cindy and Chuck Boyle Jr., citizens | Support | |
Citizens for Safe Water Around Badger | Mixed | Support but expresses disagreements including need for regulation of PFAS as a class |
Danika Brubaker, citizen | Support | |
Darcy Lanz-Sage, citizen | Support | |
Earl Witte, citizen | Support | |
Fay Johnson-Lau, citizen | Support | |
Gerald Peterson, citizen | Support | |
Jeffrey Lamont, citizen | Support | |
Kayla and Dean Furton, citizens | Support | |
Lee Lamers, citizen | Support | |
Louise Petering, citizen | Support | |
Mark Sethne, citizen | Support | |
Midwest Environmental Advocates | Support | |
Midwest Food Products Association | Oppose | |
Milwaukee Riverkeeper | Support | |
Municipal Environmental Group (MEG) | Mixed | Supports regulation but wants front-end regulation of sources, involvement in advisory groups, and alternative compliance options |
National Council for Air and Stream Improvement, Inc. | Mixed | Supports science-based effort but has technical issues with DHS toxicity value |
Patrick Meyer, citizen | Support | |
Ralph Kerler, citizen | Support | |
Richard Upton, citizen | Support | |
River Alliance of Wisconsin | Support | |
Robert Elwell, citizen | Support | |
Sam Warp, citizen | Mixed | Comment title is "I support PFAS rules" but comment body discusses regulating the source, not the "back end" |
Sandy Gillum, citizen | Support | |
Satya Rhodes-Conway, Mayor of the City of Madison | Support | |
Vi Lamers, citizen | Support | |
Virginia Geraghty, citizen | Support | |
Water Quality Coalition | Oppose | |
William Evans, citizen | Support | |
Wisconsin Civil Justice Council, Inc. | Oppose | |
Wisconsin Conservation Voters | Support | |
Wisconsin Conservation Voters’ members | Support | Letter includes support from 1103 individual members |
Wisconsin Manufacturers and Commerce | Oppose | |
Wisconsin Paper Council | Oppose | |
Wisconsin Rural Water Association | Oppose | |
American Chemistry Council | Mixed | Supports some aspects and opposes others |
Columbus Water and Light | Mixed | Supports MEG letter/comments |
Glory Adams, citizen | Support | |
La Crosse Water Utility | Mixed | Supports MEG letter/comments |
MEG - Water Division | Oppose | |
League of Wisconsin Municipalities | Mixed | Supports MEG letter/comments |
8. Comparison with Similar Rules in Adjacent States: Other surrounding states have promulgated or proposed PFAS maximum contaminant levels (MCLs) or established Health Based Guidance Levels.
Illinois has proposed PFAS maximum contaminant levels for the following contaminants:
— PFBS - 140,000 parts per trillion
— PFHxS - 140 parts per trillion
— PFNA - 21 parts per trillion
— PFOA - 21 parts per trillion
— PFOS - 14 parts per trillion
— Total PFOA and PFOS - 21 parts per trillion
