ORDER OF THE STATE OF WISCONSIN NATURAL RESOURCES BOARD
CREATING RULES
The Wisconsin Natural Resources Board adopts an order to create NR 159 relating to regulating firefighting foam that contains certain contaminants and affecting small business. |
WA-06-20 (E)
Analysis Prepared by the Department of Natural Resources
3. Explanation of Agency Authority: Section 299.48, Wis. Stats., regulates the use of firefighting foam that contains intentionally added PFAS and grants rule-making authority to the department. Specifically, s. 299.48 (5), Wis. Stats., states that the department shall promulgate rules to implement and administer the section, including to determine appropriate containment, treatment, and disposal or storage measures for testing facilities. Section 2 of 2019 Wisconsin Act 101 states that the department shall promulgate rules under s. 299.48 (5), Wis. Stats., no later than the first day of the 7th month beginning after the effective date of the subsection. Emergency rules promulgated under this subsection remain in effect until three years after the effective date, or the date on which permanent rules take effect. Notwithstanding s. 227.24 (1) (a) and (3), Wis. Stats., the department is not required to provide evidence that promulgating a rule under this subsection as an emergency rule is necessary for the preservation of public peace, health, safety, or welfare and is not required to provide a finding of emergency for a rule promulgated under this subsection. Section 2(1) of Act 101 took effect on the day after publication, which was February 6, 2020. The department also has authority to promulgate rules under s. 227.11 (2)(a), Wis. Stats., necessary to effectuate the purpose of s. 299.48, Wis. Stats., requirements. 4. Related Statutes or Rules: Additional authority for pollution prevention activities is under s. 299.13, Wis. Stats.; and authority to require notification of a discharge of a hazardous substance, including firefighting foam that contains certain contaminants, under s. 292.11, Wis. Stats. 5. Plain Language Analysis: PFAS (perfluoroalkyl and polyfluoroalkyl substances) are a group of synthetic chemicals used in industry and consumer products worldwide since the 1950s. They do not break down in the environment for extremely long periods of time and they accumulate in the human body. Exposure to certain PFAS may cause adverse health effects.
2019 Wisconsin Act 101, codified in s. 299.48, Wis. Stats., prohibits the use of Class B and dual action Class A and B firefighting foams that contain intentionally added PFAS as of September 1, 2020, except in the following two situations:
When used as part of an emergency firefighting or fire prevention operation; or
When used for testing purposes at a testing facility that has implemented appropriate containment, treatment and disposal or storage measures to prevent discharges of the foam to the environment, and does not flush, drain or otherwise discharge the foam into a storm or sanitary sewer.Section 299.48(3m), Wis. Stats., requires notification to the department when PFAS-containing foams are discharged to the environment in the following two situations:
When PFAS-containing firefighting foam is used as part of an emergency firefighting or fire prevention operation, notify DNR immediately or as soon as practicable without hindering firefighting or fire prevention operations.
When PFAS-containing firefighting foam is used for testing purposes, notify DNR immediately of any discharge of the foam to the environment.This rule creates ch. NR 159 to implement the legislature’s directive to the department to promulgate rules to implement and administer s. 299.48, Wis. Stats. The proposed emergency rule contains the following summarized requirements: “Foam” is defined as Class B firefighting foam with intentionally added PFAS, as defined in s. 299.48 (1) (a), Stats. Prohibitions and use:
The use of Class B firefighting foams with intentionally added PFAS, including for training exercises, is prohibited. The use of foam is allowed for emergency firefighting, fire prevention operations, and testing purposes so long as certain requirements are met. The prohibitions and requirements in this chapter apply to foam that is in concentrate or that is mixed with water, liquids or other substances. Discharge of foam is prohibited 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.
Notification and recordkeeping:
The proposed emergency rule contains notification requirements for persons who use foam for firefighting operations or who discharge foam to the environment as part of testing operations. Any person in possession of foam must maintain records of the amounts of foam kept on site and its safety data sheets.
Storage:
Any person storing foam used for testing purposes shall manage the foam in accordance with safety data sheets and in a manner that will prevent discharges to the environment. This includes self-inspection and spill containment plans, use of leak-proof, closed and labeled containers, and provisions for cleanup of discharges.
Containment:
Any person testing foam, including testing foam effectiveness and fire suppression systems, foam delivery systems and associated equipment or vehicles, must contain the foam in a manner that will prevent discharge of the foam to the environment. This includes: containment that meets industry and national association testing standards; testing and flushing of equipment, systems, and facilities using a containment system capable of capturing, diverting, and storing generated foam; measures to prevent foam that escapes containment from entering surface waters, groundwater, storm sewers or sanitary sewers; and a containment system design that takes into account location and use of the foam, the risk to the environment, the automatic or manually activated design of a foam system, and any other applicable local, state, or federal regulations.
Treatment:
Any person choosing to treat foam in Wisconsin shall ensure treatment is conducted in a manner that will prevent a discharge of foam to the environment, i.e. air, lands or waters of the state. One option for treatment is incineration or thermal destruction, which must be able to destroy PFAS. Prior to operation, a person operating the treatment system must submit documentation to the department that demonstrates the incineration or thermal destruction treatment system can destroy PFAS and reduce or eliminate emissions, in accordance with the standards in the rule.
Other appropriate treatment options include treating foam using technologies specified in the rule, which state that before a person may discharge treated foam directly to waters of the state or to a sanitary sewer, specified technology must be employed that reduces PFAS concentrations to the maximum degree achievable. Appropriate treatment requires system design and operational standards to remove PFAS that include preliminary treatment, filtration, a minimum of three granular activated carbon adsorption units in series, and at least one anion-exchange resin polishing unit to remove trace PFAS compounds. This type of treatment system has been proven through research and real-life application in Wisconsin to remove optimum levels of PFAS. The department may, on a case-by-case basis, approve an alternative treatment technology – or modifications to the specified treatment – if the applicant can demonstrate that the proposed alternative treatment system or modification will achieve treatment equivalent to or better than the system specified in the rule.
The rule requires sampling and monitoring for 14 treatment indicator parameters to measure appropriate, effective removal of PFAS from foam, and allows an option to modify the required monitoring if approved by the department. The indicator parameters are not enforceable limitations under this chapter, but rather are triggers for making operational adjustments for continued effective treatment of PFAS in foam. All analytical sample results for PFAS must be retained for three years and made available to the department upon request. The frequency of sampling may be reduced after a year of data collection if approved by the department. Exceedance of the indicator parameters requires treatment operators to take actions, such as implementing operational changes to restore effective treatment or conduct additional sampling to determine if the exceedances were caused by sampling or laboratory errors.
Disposal:
Any person choosing to dispose of foam or foam contaminated materials generated as result of testing in Wisconsin shall ensure they are treated in accordance with this rule or solidified by mixing with cementitious materials or a comparable process prior to disposal to effectively immobilize the PFAS and restrict leaching or migration. Foam and foam contaminated materials that are disposed of in Wisconsin may only be disposed of at a licensed solid waste facility.
Additional measures for appropriate containment, treatment, and disposal or storage will be considered during the development of a permanent rule. The department will review the periodic sampling data from operators of foam treatment systems to evaluate the effectiveness of treatment specified in the emergency rule. That information will be used to help develop the permanent rule. Regarding the prevention of a discharge of air contaminants from the use of foam with intentionally added PFAS for testing purposes, the department has a process under s. 285.27 (2) (b), Wis. Stats., which may be used to further assess appropriate measures to be implemented in the permanent rule. The department’s work on the permanent rule is ongoing.
6. Summary of, and Comparison with, Existing or Proposed Federal Statutes and Regulations:
The federal Defense Authorization Act of 2020 included several PFAS-related provisions, largely because PFAS contamination of water supplies has been identified at or around several military installations. The Act specifies in section 323 that PFAS-containing firefighting foam may only be released for purposes of an emergency response. A non-emergency release of PFAS foam may be made for the purposes of testing of equipment or training of personnel, if complete containment, capture, and proper disposal mechanisms are in place to ensure no foam is released into the environment. The Act requires the military to develop a fluorine-free foam specification by January 31, 2023 and sets a deadline for banning the use on military bases in the future.
The Defense Authorization Act also establishes guidelines for the proper disposal of firefighting foam at military sites and directs the military to develop guidance to address these issues. Specifically, all incineration of firefighting foam containing PFAS chemicals must be conducted at a temperature range adequate to break down PFAS chemicals, while also ensuring the maximum degree of reduction in emission of PFAS chemicals and must be conducted in accordance with the Clean Air Act at a facility permitted to receive the waste. The Act requires the Environmental Protection Agency (EPA) to publish interim guidance on the destruction and disposal of PFAS substances and materials, which is expected before the end of 2020.
The Federal Aviation Administration (FAA) Reauthorization Act of 2018 was passed on October 5, 2018 and states that no later than three years after the date of enactment, the FAA shall no longer require the use of fluorinated chemicals (found in PFAS) to meet the performance standards accepted under federal regulations. As a result of this change, the FAA and FAA-regulated facilities will no longer be required to use firefighting foams that contain PFAS.
State definitions of "environmental pollution" and "discharge" of a "hazardous substance" are not the same as the definition of a hazardous substance in the federal Superfund law and in some other states' laws. When discharged to the environment in Wisconsin, certain PFAS meet the definitions of a hazardous substance and/or environmental pollution under state statutes (s. 292.01, Wis. Stats.). There is no comparative federal law that specifically prohibits the use or discharge of firefighting foam that contains intentionally added PFAS. 7. Comparison with Similar Rules in Adjacent States: Illinois has legislation pending, SB3154, that would, on and after January 1, 2021, prohibit the knowing manufacture, sale, offering for sale, distribution for sale, or distribution for use of a Class B firefighting foam containing intentionally added PFAS. This legislation would also require manufacturers of Class B firefighting foam containing PFAS to register with the Illinois EPA and pay to the EPA an annual registration fee of $5,000. There is also separate legislation pending that would require the creation of groundwater quality standards to limit two PFAS, PFOA (perfluorooctanoic acid) and PFOS (perfluorooctanesulfonic acid) to 70 ppt combined or individually; and that directs the Department of Public Health to establish maximum contaminant levels (MCLs) in public water systems for PFOA and PFOS, and other PFAS.
Indiana’s House Bill 1189 was signed into law on March 30, 2020 and prohibits the use of Class B firefighting foam containing an intentionally added PFAS: (1) for training purposes; and (2) for testing purposes, unless the testing facility has implemented appropriate measures to prevent releases of the firefighting foam to the environment. Indiana also has non-binding guidance that sets screening levels for three PFAS per EPA’s health advisory level of 70 ppt.
As of January 2020, Iowa has a non-binding guidance “action plan” to identify and minimize PFAS exposures, prevent future releases, and provide education and outreach. HF 2241 failed to pass last session. HF 2241 would have prohibited the manufacture and sale of firefighting foam containing PFAS, prohibit the use of PFAS foam for training purposes, and require manufacturers of firefighter protective equipment to disclose the inclusion of PFAS in their products. Iowa DNR is developing a plan to assess risk to public water supplies from PFAS and may sample the higher risk facilities in the future.
Michigan has created by executive order a PFAS action team to identify, recommend, and implement responses to PFAS contamination. Three bills focused on fire departments and fire fighter activities have moved through the MI legislature: House Bill 4389 establishes a PFAS firefighting foam collection program at the Department of Environment, Great Lakes, and Energy (EGLE), and requires reporting of the use of firefighting foams within 48 hours including the following information: the purpose for the PFAS foam use, where it was used, how much was used, how much water was used, the brand and manufacturer of the product used, and the proposed process for cleanup and disposal. House Bill 4390 bars the use of PFAS firefighting foam in firefighting training, and requires proper training for the emergency use, handling, storage, disposal and cleanup of PFAS foam. House Bill 4391 calls for rulemaking to be promulgated by the Department of Labor to establish best practices for handling and storing PFAS foam by emergency responders, ban the use of PFAS foam for training purposes, and to end the use of PFAS foam for equipment calibration unless certain stringent conditions have been met.
Michigan recently announced it had collected and disposed of over 30,000 gallons of PFAS-containing firefighting foam through a clean sweep type program. Michigan recommends that fire departments use only Class A foam unless Class B foam is needed to protect human life or critical infrastructure, and that they train only with Class A foams.
Minnesota passed legislation that took effect July 1, 2020 requiring that any Class B firefighting foam containing PFAS that is used on a fire must be reported to the State Fire Reporting System within 24 hours. It also prohibits use of PFAS-containing firefighting foam for testing and training unless appropriate containment, treatment, and disposal measures are implemented to prevent releases of foam to the environment. Minnesota has not created additional guidance or rules to describe appropriate containment, treatment, and disposal measures. Minnesota also has non-binding guidance identifying maximum levels of PFBS, PFHxS, PFOS, and PFOA in drinking water.
Ohio has created a PFAS drinking water action plan and is testing all 1,500 public water systems for six PFAS and will notify residents about exposure risks.
8. Summary of Factual Data and Analytical Methodologies Used and How Any Related Findings Support the Regulatory Approach Chosen: The department is required by statute to promulgate rules to implement and administer s. 299.48, Wis. Stats., including to determine appropriate containment, treatment, and disposal or storage measures for foam testing facilities. The department reviewed extensive information from the Interstate Technology Regulatory Council (https://pfas-1.itrcweb.org/) that has developed fact sheets about PFAS and firefighting foam. Additional information was used from foam and PFAS guidance documents created by the U.S. Department of Defense, the National Fire Protection Association, the Commonwealth of Australia, and other states, including the Michigan PFAS Action Response Team. The department also discussed foam management issues with the WI State Fire Chiefs Association, WI Technical College staff (related to fire fighter and inspector training), the WI Airport Management Association, the WI Department of Safety and Professional Services staff, and colleagues in other states. Ancillary to this rule, existing statute and administrative code requires any person that causes the discharge of a hazardous substance to the environment, subject to s. 292.11 (9), Wis. Stats., to take the actions necessary to restore the environment to the extent practicable and minimize the harmful effects from the discharge to the air, lands or waters of this state as required by s. 292.11 (3), Wis. Stats. Persons responsible under s. 292.11 (3), Wis. Stats., for discharges of a hazardous substance to the environment shall follow the applicable requirements in chs. NR 700 to 754, Admin. Code, for response action sites.
