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 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.
Additional comments on an EIA for the permanent rule will be solicited from potentially affected parties, which include three main types of sectors (that include small businesses and other businesses): entities using foam for emergency fire fighting or fire prevention operations including fixed fire suppression delivery systems or equipment; entities using foam for testing, including foam and foam equipment testing facilities that test firefighting foam effectiveness or test a firefighting foam delivery system or equipment; and entities that contain, treat, and dispose or store foam or foam contaminated materials from a testing facility or generated as a result of testing foam. The anticipated increased costs for these entities include paying for appropriate treatment and disposal of foam or foam contaminated materials in accordance with this rule.
10. Effect on Small Business (initial regulatory flexibility analysis): Small businesses impacted by this rule would be 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 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. Direct economic estimates based on the types of storage, the expected storage volume, and labor costs will be solicited and evaluated by the department in advance of the permanent rule.
Containment, treatment and disposal: moderate economic impact expected, additional estimates under solicitation and evaluation by the department. It is estimated that there are approximately 150-200 fixed fire suppression systems within public and private facilities that utilize Class B firefighting foam. A limited 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.
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.
For the purposes of this small business analysis, the department assumes two foam treatment facilities (contractors) will be active in Wisconsin that are small businesses. (One other treatment facility is a manufacturer of foam and is not a small business.) These treatment facilities will accept foam used for testing purposes and must appropriately store, contain, treat and dispose of the foam. To ensure appropriate treatment measures, the rule requires periodic sampling for detection of PFAS compounds that is estimated to cost around $300 per week or $15,600 per year. This sampling could total $31,200 per year; however, such sampling may already be occurring at these facilities. If that is the case, only a portion of the total of $31,200 would be attributable to the rule provisions.
Therefore, the estimated economic impact of this rule on small businesses is $2,331,200 per year with expected annual decreases as Class B firefighting foams that contain intentionally added PFAS are replaced in current applications with alternative fire suppression products.
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: Kate Strom Hiorns; Department of Natural Resources, PO Box 7921,
12. Place where comments are to be submitted and deadline for submission:
Written comments may be submitted at the public hearings, by regular mail, or by email to:
Kate Strom Hiorns – WA/5
Department of Natural Resources
PO Box 7921
Madison, WI 53707-7921
(608) 261-8449
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 with intentionally added perfluoroalkyl or polyfluoroalkyl substances (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 with 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 containing 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, and disposes or stores foam or foam contaminated materials from a testing facility or generated as a result of testing foam.
(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. These testing activities are 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 and extinguish 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 operations” 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 they are expected to control or extinguish.
(14) "Foam" means “Class B firefighting foam” as defined under s. 299.48 (1) (a), Stats. (15) “Foam contaminated materials” means any material that contains PFAS that is generated as a result of foam storage, containment, or treatment, including treatment media, equipment used to clean up firefighting foams, booms, filters, infrastructure, or other debris.
(16) “Intentionally added PFAS” means PFAS is a constituent of the foam added during the manufacturing process.
(17) “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). (18) “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. Note: Under s. 299.48 (1) (b), Stats., “PFAS” means a perfluoroalkyl or polyfluoroalkyl substance. (20) “PFAS treatment indicator parameter" means a PFAS substance for which a numeric PFAS treatment action level has been established under s. NR 159.08, Table 1, to indicate the performance of the foam treatment system in preventing foam discharges to the environment. (21) “Safety data sheet” means documents that contain safety and safe handling information in respect of the product, including protection information regarding human health and may include information on protection of the environment.
(22) “Storage” means storing on a temporary basis for future use or future treatment or disposal in such a manner as not to constitute ultimate disposal.
Note: Under s. 299.48 (1) (c), Stats., “testing” means the testing of a firefighting foam to evaluate its effectiveness and testing of a firefighting foam delivery system or equipment. (24) “Training” has the meaning specified in s. 299.48 (1) (d), Stats. Note: Under s. 299.48 (1) (d), Stats., “training” means providing first-hand field experience to a person who may use a firefighting foam as part of an emergency firefighting or fire prevention operation. (25) “Treatment” means any method, technique or process, including thermal destruction, that changes the physical, chemical or biological character or composition of a contaminant so as to immobilize, remove, or destroy the contaminant.
NR 159.04 Prohibition and exemptions. (1) Except as provided under sub. (2), no person may use or otherwise discharge, including for training purposes, a Class B firefighting foam that contains intentionally added PFAS.
(2) All of the following actions are exempt from the prohibition under sub. (1):
(a) The use or discharge by any person of a Class B firefighting foam that contains intentionally added PFAS as part of an emergency firefighting or fire prevention operation.
(b) The use by any person of Class B firefighting foam that contains intentionally added PFAS for testing purposes, including calibration testing, conformance testing, or fixed system testing, if the testing facility has implemented appropriate containment, treatment, and disposal or storage measures, as specified in ss. NR 159.06 to 159.08, to prevent discharges of the foam to the environment. Note: Under s. 299.48 (3) (b), Stats., appropriate containment, treatment, and disposal or storage measures may not include flushing, draining, or otherwise discharging foam into a storm or sanitary sewer. Note: A person responsible under s. 292.11 (3), Stats., for discharges of PFAS to the environment shall follow the applicable requirements in chs. NR 700 to 754 for response action sites. NR 159.05 Notification and recordkeeping. (1) Notification. A person that uses or discharges foam shall do all of the following:
(a) Notify the department, according to ch. NR 706, of the use or discharge of foam as part of an emergency firefighting or fire prevention operation immediately or as soon as practicable without hindering emergency firefighting or fire prevention operations. (b) Notify the department immediately, according to ch. NR 706, of any discharge of foam to the environment resulting from testing purposes. Note: A person responsible under s. 292.11 (3), Stats., for discharges of PFAS to the environment is subject to the applicable requirements in chs. NR 700 to 754, including notification requirements in ch. NR 706 and immediate action responsibilities to contain, treat, remove or halt the discharge in accordance with ch. NR 708. (2) Recordkeeping. Any person in possession of foam shall retain foam safety data sheets and make them available to the department for examination upon request.
