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The statement of scope for this rule, SS 090-19, 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 date.
ORDER OF THE STATE OF WISCONSIN NATURAL RESOURCES BOARD
AMENDING RULES
The Wisconsin Natural Resources Board proposes an order to amend NR 140.10 Table 1, 140.20 Table 3 and Appendix I to Table 1 relating to setting numerical standards to minimize the concentration of polluting substances in groundwater and affecting small business.
DG-15-19
Analysis Prepared by the Department of Natural Resources
1. Statute Interpreted:
Sections 160.07(5), 160.15(1), 160.19, 281.15, 281.19(1), and 299.11, Wis. Stats., authorize the department to modify and create rules relating to development of numerical groundwater quality standards.
2. Statutory Authority:
Sections 160.07(5), 160.15(1), 160.19, 281.15, 281.19(1), and 299.11, Wis. Stats.
3. Explanation of Agency Authority:
Chapter 160, Wis. Stats., establishes an administrative process for developing numerical state groundwater quality standards to be used as criteria for the protection of public health and welfare by all state groundwater regulatory programs. Chapter 160, Wis. Stats., directs the department to use this administrative process to establish numeric groundwater quality standards for substances of public health or welfare concern, found in, or having a reasonable probability of being detected in, the groundwater resources of the state. The department is required to engage in rulemaking for all substances of public health concern for which the Wisconsin Department of Health Services (DHS) develops enforcement standard recommendations. S. 160.07(5), Wis. Stat. The department is also required to establish by rule preventative action limits for all substances with enforcement standards. S. 160.15(1), Wis. Stat.
Section 281.15, Wis. Stat., states that the department shall promulgate rules setting standards of water quality, applicable to the waters of the state, that protect the public interest, including the protection of public health and welfare, and the present and prospective future use of such waters for public and private water systems. Section 281.19(1), Wis. Stat., grants the department the authority to issue general orders and adopt rules applicable throughout the state for the construction, installation, use and operation of practicable and available systems, methods and means for preventing and abating pollution of the waters of the state.
In accordance with ch. 160, Wis. Stat., the reliability of sampling data is to be considered when determining the range of responses that a regulatory agency may take, or require, to address attainment or exceedance of a state groundwater quality standard at an applicable "point of standards application." Section 299.11, Wis. Stat., authorizes the department, in conjunction with the Department of Agriculture Trade and Consumer Protection (DATCP), to establish uniform minimum criteria for laboratories certified to conduct water analysis testing, and to establish accepted methodologies to be followed in conducting tests and sampling protocols and documentation procedures to be followed when collecting water samples for testing.
4. Related Statutes or Rules:
Section 281.12(1), Wis. Stats., grants the department general authority to carry out planning, management and regulatory programs necessary to protect, maintain and improve the quality and management of the waters of the state, ground and surface, public and private.
Chapter 280, Wis. Stats., authorizes the department to prescribe, publish and enforce minimum standards and rules to be pursued in the obtaining of pure drinking water for human consumption. Chapter NR 809, Wis. Adm. Code, establishes minimum state drinking water standards for the protection of public health, safety and welfare. This administrative code contains numeric water quality protection standards applicable to public water supply systems in Wisconsin.
Wisconsin state drinking water standards, applicable to public drinking water systems, have not yet been established for: hexavalent chromium, strontium, thiamethoxam, imidacloprid, clothianidin, isoxaflutole, isoxaflutole DKN degradate, isoxaflutole BA degradate, thiencarbazone-methyl, Dacthal TPA and MTP degradates, glyphosate aminomethylphosphonic acid (AMPA) degradate, sulfentrazone, perfluorooctanoic acid (PFOA), perfluorooctane sulfonate (PFOS), 1,2,3-trichloropropane (1,2,3-TCP), 1,4-dioxane, boron, molybdenum or cobalt.
Wisconsin state drinking water maximum contaminant levels (MCLs) have been established, in ch. NR 809, Wis. Adm. Code, for: glyphosate, at 700 micrograms per liter (ug/L), Escherichia coli (E. coli) bacteria, at 0 bacteria present in a drinking water sample, trichloroethylene (TCE), at 5 ug/L, and tetrachloroethylene (PCE), at 5 ug/L. Secondary Standards, established for aesthetic quality, have been promulgated in ch. NR 809, Wis. Adm. Code, for aluminum at 50 to 200 ug/L. Note that concentration in ug/L is equivalent to parts per billion (ppb).
5. Plain Language Analysis:
Chapter 160, Wis. Stat., is Wisconsin’s Groundwater Standards Protection law. This chapter requires the department to develop numerical groundwater quality standards, consisting of enforcement standards and preventive action limits. Chapter NR 140, Wis. Adm. Code, establishes groundwater standards. These proposed amendments to ch. NR 140, Wis. Adm. Code, would add new state groundwater quality standards for 17 substances and revise existing standards for another 8 substances. In accordance with s. 160.07, Wis. Stat., amendments to ch. NR 140, Wis. Adm. Code, groundwater quality standards for substances of public health concern are based on recommendations from DHS. DHS’s recommendations are available at: https://www.dhs.wisconsin.gov/water/gws-cycle10.htm. The technical analysis supporting each of the recommendations can be found by clicking on the substance.
The proposed rule for new and revised groundwater quality standards are grouped into five categories: Per- and Polyfluoroalkyl Substances (PFAS), Volatile Organic Compounds (VOCs), Metals/Metalloids, Agricultural Chemicals, and Bacteria. PFAS includes new public health related groundwater standards for perfluorooctane sulfonate (PFOS) and perfluorooctanoic acid (PFOA). VOCs includes revised public health related groundwater standards for: trichloroethylene (TCE), tetrachloroethylene (PCE), 1,4-dioxane, and 1,2,3-trichloropropane (1,2,3-TCP). Metals/Metalloids includes new public health related groundwater standards for hexavalent chromium and strontium, and revised public health related groundwater standards for: aluminum, boron, molybdenum, and cobalt. Agricultural Chemicals includes new public health related groundwater standards for: thiamethoxam, imidacloprid, clothianidin, isoxaflutole plus isoxaflutole DKN degradate, isoxaflutole BA degradate, thiencarbazone-methyl, glyphosate, glyphosate aminomethylphosphonic acid (AMPA) degradate, and sulfentrazone, and revised public health related groundwater standards for Dacthal that would include the Dacthal Tetrachloroterephthalic Acid (TPA) and Monomethyl tetrachloroterephthalic acid (MTP) degradates. Bacteria includes new public health related groundwater standards for Escherichia coli (E. coli) bacteria.
Minor revisions, to clarify rule language and update rule reference information, are also proposed to ch. NR 140. These revisions include:
Revising order of Antimony and Anthracene in s. NR 140.10, Table 1 to correct their alphabetical order in the table.
Removing, in s. NR 140.20, Table 3, the indicator parameter for ammonia nitrogen. Health standards were established for ammonia (as N), in s. NR 140.10, Table 1, as part of the "Cycle 9" revisions to ch. NR 140.
Making needed additions and revisions to ch. NR 140 Appendix I to Table 1 substance names, Chemical Abstracts Service (CAS) registry numbers, and common synonyms.
6. Summary of, and Comparison with, Existing or Proposed Federal Statutes and Regulations:
The U.S. Environmental Protection Agency (EPA) establishes health-based drinking water maximum contaminant levels (MCLs), cancer risk levels, and health advisories (HAs) that are used to assess the quality of groundwater drinking water supplies. Federal drinking water MCLs are established based on scientific risk assessments and, in some cases, economic and technological considerations. Cancer risk levels are established as the concentration of a chemical in drinking water that corresponds to a specific excess estimated lifetime cancer risk. Federal lifetime health advisories (LHAs) are developed based on an established health risk acceptable daily intake (ADI) level or reference dose (RfD). An ADI or RfD is the daily oral exposure to a chemical that is likely to be without an appreciable risk over a lifetime.
The proposed amendments to ch. NR 140, Wis. Adm. Code, adds new or revised state numeric groundwater quality standards for: PFAS including perfluorooctane sulfonate (PFOS) and perfluorooctanoic acid (PFOA); VOCs including trichloroethylene (TCE), tetrachloroethylene (PCE), 1,4-dioxane, and 1,2,3-trichloropropane (1,2,3-TCP); metals/metalloids including hexavalent chromium, strontium, aluminum, boron, molybdenum, and cobalt; agricultural chemicals including thiamethoxam, imidacloprid, clothianidin, isoxaflutole plus isoxaflutole DKN degradate, isoxaflutole BA degradate, thiencarbazone-methyl, glyphosate, glyphosate aminomethylphosphonic acid (AMPA) degradate, sulfentrazone, Dacthal including the Dacthal Tetrachloroterephthalic Acid (TPA) and Monomethyl tetrachloroterephthalic acid (MTP) degradates; and bacteria including Escherichia coli (E. coli) bacteria.
Federal drinking water MCLs have been established for: glyphosate (700 ug/L), Escherichia coli (E. coli) bacteria (0 bacteria present), trichloroethylene (TCE) (5 ug/L) and tetrachloroethylene (PCE) (5 ug/L). EPA cancer slope factors have been established that can be used to determine 1 in 1,000,000 drinking water cancer risk levels. EPA cancer slope factors have been established for: hexavalent chromium [EPA OPP = 0.791 (mg/kg-day)-1, EPA IRIS draft = 0.5 (mg/kg-day)-1], isoxaflutole [0.0114 (mg/kg-day)-1], 1,2,3-trichloropropane (1,2,3-TCP) [30 (mg/kg-d)-1] and 1,4-dioxane [0.01 (mg/kg-d)-1]. EPA LHAs have been established for: strontium (4,000 ug/L), the sum of Dacthal and its degradates (MTP and TPA) (70 ug/L), perfluorooctanoic acid (PFOA) (70 ng/L), perfluorooctane sulfonate (PFOS) (70 ng/L), boron (6,000 ug/L), molybdenum (40 ug/L) and 1,4-dioxane (200 ug/L).
RfDs have been established by EPA for: hexavalent chromium (0.003 mg/kg/day), thiamethoxam (0.012 mg/kg/day), imidacloprid (0.057 mg/kg/day), clothianidin (0.098 mg/kg/day), isoxaflutole (0.02 mg/kg/day), thiencarbazone-methyl (1.17 mg/kg/day), sulfentrazone (0.14 mg/kg/day), 1,2,3-trichloropropane (1,2,3-TCP) (0.004 mg/kg/day) and 1,4-dioxane (0.03 mg/kg/day).
In October 2021, EPA issued a strategic roadmap for PFAS. EPA describes PFAS as an urgent public health and environmental issue that requires increased and sustained action by every level of government – federal, Tribal, state, and local. EPA’s roadmap describes actions EPA plans to take to reduce PFAS in the environment. However, these actions do not include establishing numeric standards for PFAS in groundwater, which is exclusively a state responsibility in Wisconsin.
7. If Held, Summary of Comments Received During Preliminary Comment Period
and at Public Hearing on the Statement of Scope:
A preliminary public hearing on Statement of Scope SS 090-19, related to revisions to ch. NR 140, was held on Nov. 12, 2019. Comments on the proposed scope were accepted through Nov. 19, 2019. A significant number of comments were received in support of the proposed scope for ch. NR 140 rulemaking. Comments were also received expressing concerns that the proposed scope did not list the specific substances that would be included in the proposed ch. NR 140 rulemaking effort and was therefore too broad. Those comments suggested that the list of the specific substances for which DHS provided groundwater standard recommendations should be added to the rulemaking scope.
Comments received in support of the proposed scope statement for ch. NR 140 rulemaking primarily focused on potential state groundwater quality standards for PFAS. Comments noted that there are health effects associated with exposure to PFAS compounds and that rules and standards were needed to protect Wisconsin water resources and drinking water supplies. Comments suggested that established groundwater standards for PFAS would provide regulatory certainty to responsible parties for cleanup and remediation at contamination sites. Comments were also received suggesting that, as PFAS are often detected in the environment as a complex mixture of different PFAS compounds, they should be regulated as a "class," or group of chemicals with a similar chemical composition and mechanism of toxicity.
The department provided the DHS with a list of substances, designated the "Cycle 10" list, and requested that DHS review toxicologic information on these substances and, if appropriate, provide recommendations for health-based groundwater quality standards for the substances. Comments on the scope pointed out that the specific substances on the "Cycle 10" list, that DHS provided groundwater standard recommendations for, including two PFAS compounds, were not listed in the scope statement. Comments suggested that this lack of specificity and detail made the scope too broad and potentially noncompliant with state law, and that therefore, the scope should be rejected by the Natural Resources Board and sent back to the department to have the list of the specific substances, for which DHS provided recommendations, added to it. Comments were also received related to the specific scientific studies and methods used by DHS to develop their health-based groundwater standard recommendations.
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