ORDER OF THE STATE OF WISCONSIN NATURAL RESOURCES BOARD
AMENDING AND CREATING RULES
The Wisconsin Natural Resources Board proposes an order to amend NR 219.04 Table F; and to create NR 102.03 (4e) and (4m), 102.04 (1m) and (8) (d), 105.04 (4m), 106 Subchapter VIII, 219.04 (1) (Note) and Table F (Note), relating to adding narrative surface water criteria with numeric thresholds and analytical methods for poly- and perfluoroalkyl substances (PFAS) including PFOS and PFOA for the purpose of protecting public health as well as revisions to the procedures in the Wisconsin Pollutant Discharge Elimination System (“WPDES”) permitting program to implement the new water quality criteria and affecting small business. |
WY-23-19
Analysis Prepared by the Department of Natural Resources
1-3. Statutory Authority, Statutes Interpreted, and Explanation of Agency Authority:
The statutory authority for developing PFAS surface water quality standards for human health protection and for developing factors for listing waters as impaired for PFAS is as follows:
- Section 281.12, Wis. Stats., grants the department general supervision and control to carry out the planning, management, and regulatory programs necessary for prevention/reduction of water pollution and for improvement of water quality. - Section 281.13(1)(a) and (b), Wis. Stats., give the department the authority to create rules to research and assess water quality in the state. - Section 281.15, Wis. Stats., mandates that the department promulgate water quality standards, including water quality criteria and designated uses. It recognizes that different use categories and criteria are appropriate for different types of waterbodies, and that the department shall establish criteria which are not more stringent than reasonably necessary to ensure attainment of the designated use for the waterbodies. - Section 281.65(4)(c) and (cd), Wis. Stats., directs the department to prepare a list of impaired waters. - Section 227.11(2), Wis. Stats., provides the department with the authority to promulgate rules that are necessary to administer the specific statutory directives in ch. 281, Wis. Stats. The statutory authority to promulgate Wisconsin Pollutant Discharge Elimination System (WPDES) permitting procedures to implement the new standards is as follows:
- Section 283.13(5), Wis. Stats., states that the department shall establish more stringent limitations than required under subs (3) and (4) when necessary to comply with water quality standards. - Section 283.31(3) and (4), Wis. Stats., state that the department may issue a permit upon condition that the permit contains limitations necessary to comply with any applicable federal law or regulation, state water quality standards, and total maximum daily loads. - Section 283.37, Wis. Stats., gives the department authority to promulgate rules regarding permit applications. - Section 283.55, Wis. Stats., gives the department authority to impose monitoring and reporting requirements. - Section 283.83, Wis. Stats., requires that the department establish a continuing planning process and that plans shall include implementation procedures including compliance schedule for new water quality standards. - Section 227.11(2), Wis. Stats., provides the department with the authority to promulgate rules that are necessary to administer the specific statutory directives in ch. 283, Wis. Stats. 4. Related Statutes or Rules:
The proposed rules are related to three other sets of rules currently in progress:
Rule package DG-15-19 is proposing to establish groundwater standards for several compounds including PFOS and PFOA for the protection of human health.
Rule package DG-24-19 is proposing drinking water maximum contaminant levels (MCLs) for PFOS & PFOA.
Rule package WA-07-20 is proposing to regulate class B firefighting foams containing PFAS.
Rule package WY-23-13 is proposing revisions to ch. NR102, Wis. Adm. Code, in order to add text regarding waterbody assessments and biological thresholds, which are topics unrelated to this rule but may affect numbering for this rule package. With regard to existing regulations, these proposed rules relate to surface water quality standards and the WPDES permit program. Related rules include chs. NR 102, 104, 105, and 106 Wis. Adm. Code, which contain Wisconsin’s surface water quality standards and their application, and chs. NR 200 to 299, Wis. Adm. Code., which contain requirements for the WPDES permit program. Chapter 283, Wis. Stats., contains the statutory authority and requirements for the WPDES permit program. 5. Plain Language Analysis:
Poly- and perfluoroalkyl substances (PFAS) are human-made, organic compounds that have been manufactured for use in non-stick coatings, waterproof fabrics, firefighting foams, food packaging, and many other applications since the 1940s. PFAS are highly resistant to degradation and have been detected globally in water, sediment, and wildlife. This global distribution is of concern as PFAS have documented toxicity to animals and because epidemiological studies have suggested probable links to several human health effects. In Wisconsin, PFAS have been detected in drinking and surface water near sources of industrial use or manufacture and near spill locations. Perfluorooctane sulfonate (PFOS) has been found in fish tissue resulting in the issuance of special fish consumption advisories for some surface waters in the state.
The proposed rules include a water quality standard for two types of PFAS: PFOS and perfluorooctanoic acid (PFOA). Under the Clean Water Act, surface water quality standards can include criteria that are either numeric or narrative. Wisconsin’s existing Administrative Codes contain both numeric and narrative criteria for toxic substances:
- Chapter NR 105, Wis. Adm. Code, contains specific numeric criteria for numerous toxic pollutants as well as formulas for calculating numeric criteria for toxics that do not yet have promulgated criteria. - Section NR 102.04(d), Wis. Adm. Code, contains Wisconsin’s narrative criteria for toxics. This existing rule states that substances in concentrations or combinations which are toxic or harmful to humans shall not be present in amounts found to be of public health significance [emphasis added], nor shall substances be present in amounts which are acutely harmful to animal, plant or aquatic life. - The proposed PFOS and PFOA standard interprets Wisconsin’s existing narrative criterion with numeric thresholds, created under s. NR 105.04(4m) and s. NR 102.04, Wis. Adm. Code. The proposed rule defines levels of public health significance for the two types of PFAS based on preventing adverse effects from contact with or ingestion of surface waters of the state, or from ingestion of fish taken from waters of the state. - For PFOS, the proposed level of public health significance is 8 ng/L for all waters except those that cannot naturally support fish and do not have downstream waters that support fish.
- For PFOA, the proposed level of public health significance is 20 ng/L in waters classified as public water supplies under ch. NR 104, and 95 ng/L for other surface waters. Related to the proposed PFOS and PFOA standard, the proposed rule also includes assessment protocols that clarify when a surface water that contains levels of PFOS or PFOA above the public health significance threshold levels in the narrative standard should be listed on the state’s impaired waters list.
Additionally, this rule includes revisions to ch. NR 106, Wis. Adm. Code, that address WPDES permit implementation procedures for the new PFOS and PFOA standard. With regard to permit implementation of the narrative criteria, DNR is proposing source reduction as a first step toward reducing levels of PFOS and PFOA in the effluent rather than requiring treatment up front because source reduction is the most cost effective approach to reducing or eliminating PFOS and PFOA in wastewater discharges and it avoids the generation of contaminated carbon filters from treatment systems which will contain higher levels of PFOA and PFOS that will have to be disposed of in a safe manner. The proposed rule establishes WPDES permit requirements for PFOS and PFOA discharges to surface waters of the state, in ch. NR 106 – Subchapter VIII, Wis Adm. Code, including: the determination of the need for a PFAS Minimization Plan based on data generation in a reissued permit, a general schedule for PFAS Minimization Plan permit implementation procedures, and PFAS Minimization Plan requirements. The proposed permit requirements include standard PFOS and PFOA sampling frequencies for categories of permitted dischargers. If the department does not believe that PFOS or PFOA is present in a permittee’s discharge, sampling may be waived. Based on the effluent data collected, the proposed rule establishes procedures for determining whether a permitted facility’s discharge contains PFOS or PFOA at levels that have the reasonable potential to cause or contribute to an exceedance of the PFOS or PFOA standard. For permitted facilities that have the reasonable potential to exceed the PFOS or PFOA standard, the proposed rule requires that the permittee develop and implement a PFAS Minimization Plan in accordance with the timelines in the rule and WPDES permit schedule. The permittee must also continue sampling for PFOS and PFOA. It is expected that for nearly all WPDES permitted facilities with discharges to surface waters as well as industrial facilities that discharge wastewater to publicly owned treatment plants, source reduction actions outlined in minimization plans will reduce PFOS and PFOA discharges to levels that are below the public health thresholds in standard. Because past pollutant minimization plans for other similar pollutants such as mercury have been shown to result in a 43% percent (median) reduction in effluent concentrations and based on relatively low initial concentrations of PFOS and PFOA observed in permittees’ effluents, the department predicts that only a couple of industrial facilities (indirect dischargers) in the state will eventually have to install treatment to comply with the PFOS and PFOA standard. In these cases, the proposed rule allows a compliance schedule for installation of treatment technology.
In the event treatment becomes necessary for a WPDES permit holder, pursuant to s. 283.15, Wis. Stats., the permitted facility may apply for an economic variance if installation of treatment technology will cause substantial and widespread adverse social and economic impacts in the area where the permittee is located. Finally, this rule adds specifications for the preservation and holding times of aqueous, biosolids (sludge), and tissue samples that will be analyzed for PFAS in ch. NR 219, Wis. Adm. Code. 6. Summary of, and Comparison with, Existing or Proposed Federal Statutes and Regulations:
Federal statutes and regulations direct states to establish and periodically review water quality standards. State adoption of water quality standards and revisions to standards require EPA approval pursuant to 40 CFR 131.20 and 131.21. - 33 USC s. 1313(c) (section 303(c) of the Clean Water Act) requires that states periodically review and modify or adopt, if necessary, water quality standards. This requirement applies to all surface waters in the state.
- 33 USC s. 1314(a) (section 304 of the Clean Water Act) requires that EPA develop and publish criteria for water quality for all waters for uses such as aquatic life, public health protection, and recreation.
- 40 CFR s. 130.3 defines water quality standards as setting water quality goals for a waterbody that will protect its designated uses (such as protection of fish, wildlife, recreation, and public health and welfare). Criteria will be set to protect those uses. - 40 CFR s. 131.4 specifies that states are responsible for reviewing, establishing and revising their own water quality standards. - 40 CFR ss. 131.10 and 11 require states to develop water quality standards including uses and criteria to protect the uses. 40 CFR s. 131.11 (b) states that the criteria must be based on federal guidance, federal guidance modified to reflect site-specific criteria, or other scientifically defensible methods. - 40 CFR s. 131.11 specifies that criteria must protect the designated uses and that criteria must be based on sound scientific rationale and must contain sufficient parameters or constituents to protect the designated use. Furthermore, states must review water quality data and information on discharges to identify specific water bodies where toxic pollutants may be adversely affecting water quality or the attainment of the designated use or where the levels of toxic pollutants are at a level to warrant concern, and must adopt criteria for such toxic pollutants applicable to the water body sufficient to protect the designated use. - 40 CFR 131.20 requires states to periodically review water quality standards. - 40 CFR 132 and Appendices contain requirements for developing water quality standards in the Great Lakes System as well as implementation procedures for the standards and National Pollutant - Discharge Elimination System (NPDES) permitting requirements for point source discharges to the Great Lakes System. - 40 CFR 123.25 lists the federal regulations in 40 CFR 122 and 124 that states must follow in the administration of the NPDES permit program. State rules must be at least as stringent as these federal requirements. EPA has neither promulgated specific water quality standards for PFAS nor proposed criteria under s.304(a) of the Clean Water Act. EPA typically relies on states to take the initiative and develop water quality standards because states have varying types of fish and aquatic life species and varying types of waterbodies within, and adjacent to, their borders. Occasionally, EPA will specifically direct states to promulgate water quality standards or promulgate procedures for deriving criteria for pollutants in advance of state efforts, and then require that states adopt water quality standards for the pollutant that are at least as stringent as EPA’s procedure or standard. EPA has not expressly directed states to develop water quality standards for PFAS at this time, although states do not need EPA approval to begin developing water quality standards and have the discretion to develop water quality criteria for any pollutant.
The method of calculating numeric criteria in s. NR 105, Wis. Adm. Code, reflects such procedures established by EPA for Great Lakes states. As part of this rulemaking effort, the department also conducted preliminary calculations of numeric criteria using the procedures outlined ch. NR 105, Wis. Adm. Code. At this time, however, the department selected the approach outlined above to develop public health significance thresholds under ch. NR 102, Wis. Adm. Code. This approach was selected because PFOS public health significance levels are more closely correlated with the issuance of fish consumption advisories than the ch. NR 105, Wis. Adm. Code, numeric criteria would have been. Furthermore, codifying a method for developing PFAS minimization plans will reduce the administrative burden and permitting timelines that would have been associated with processing a large volume of variance requests expected as a result of the criteria developed using the procedures outlined ch. NR 105, Wis. Adm. Code. The department believes that public health significance thresholds combined with PFAS minimization plans will result in more timely reductions in levels of PFOS, PFOA and all other parameters regulated in WPDES permits, as permittees exceeding the proposed public significance thresholds will begin PFAS minimization plans immediately upon permit reissuance rather than after a prolonged variance application and review process and potential litigation. The department expects that the selected approach will be effective at reducing sources of PFOS and PFOA in areas of the state where PFOS or PFOA concentrations in wastewater are elevated.
7. If Held, Summary of Comments Received During Preliminary Comment Period and at Public Hearing on the Statement of Scope:
The department received written comments related to WY-23-19 from 49 entities during the preliminary comment period, and oral comments from 5 speakers during the public hearing on the statement of scope. Of the comments received, 38 entities expressed support of the proposed rules, 8 expressed opposition to the proposed rules, and the opinions of the remaining 8 were mixed. Those expressing mixed opinions voiced general support for the rulemaking effort but noted concerns about the cost of implementation, the desire to regulate PFAS as a class rather than compound by compound, technical issues with the toxicity values developed by the Department of Health Services, and regulation of PFAS at the source rather than at POTWs.
8. Comparison with Similar Rules in Adjacent States:
The administrative codes of adjacent states contain narrative criteria for the protection of surface waters, although none of the adjacent states’ narrative criteria are specific to PFOS or PFOA. The narrative criteria of Illinois, Iowa, and Michigan specifically prohibit concentrations of toxic substances in surface waters in amounts that will adversely affect human health or public health. Minnesota’s narrative criteria prohibits discharge of wastes in such quantities that will cause pollution as defined by law.
Code citations for these narrative criteria are as follows:
- Illinois: Ill. Admin. Code tit. 35, § 302.210: “Other Toxic Substances. Waters of the State shall be free from any substances or combination of substances in concentrations toxic or harmful to human health, or to animal, plant or aquatic life. Individual chemical substances or parameters for which numeric standards are specified in the Subpart are not subject to this Section.” - Iowa: IAC § 567.61.3(2)(d): “General water quality criteria. The following criteria are applicable to all surface waters including general use and designated use waters, at all places and at all times for the uses described in 61.3(1) ‘a.’ … ‘d.’ Such waters shall be free from substances attributable to wastewater discharges or agricultural practices in concentrations or combinations which are acutely toxic to human, animal, or plant life.”
