ORDER OF THE STATE OF WISCONSIN NATURAL RESOURCES BOARD
AMENDING AND CREATING RULES
The Wisconsin Natural Resources Board adopts an order to amend NR 219.04 Table F and table note 1; and to create NR 102.03 (4e) and (4m), 102.04 (1) (d) (Note) and (8) (d), 105.04 (4m), 106 Subchapter VIII, 219.04 (1) (Note) and Table F (Note), relating to adding narrative and numeric surface water criteria 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. Statute Interpreted:
2. Statutory Authority:
3. Explanation of Agency Authority:
The statutory authority for developing PFOS and PFOA surface water quality standards for human health protection, for developing factors for listing waters as impaired for PFOS or PFOA, and for promulgating Wisconsin Pollutant Discharge Elimination System (WPDES) permitting procedures to implement the new standards 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 and 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 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 chs. 281 and 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. NR 102, 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. — Section 299.48, Wis. Stats., regulates class B firefighting foams containing PFAS. — Section 292.11, Wis. Stats., regulates discharges of hazardous substances. With regard to existing regulations, these proposed rules relate to surface water quality standards and the Wisconsin Pollutant Discharge Elimination System (WPDES) wastewater 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 numeric or narrative and designated uses (e.g. aquatic life use, recreational use, and public health and welfare). 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 and secondary values for toxics that do not yet have promulgated criteria. —Section NR 102.04(1)(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 protects public health and recreational uses of surface waters by establishing criteria that contain both narrative provisions and numeric criteria. The narrative and numeric criteria interpret Wisconsin’s existing narrative standards under ss. NR 105.04(4m) and 102.04, Wis. Adm. Code, with regard to two toxic substances, PFOS and PFOA. 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 levels of public health significance are 20 ng/L in waters classified as public water supplies under ch. NR 104, Wis. Adm. Code, and 95 ng/L for other surface waters. Related to the proposed PFOS and PFOA standards, the proposed rule also includes assessment protocols that clarify when a surface water that contains levels of PFOS or PFOA above the criteria 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 PFOS and PFOA 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. Source reduction also 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 PFOS and PFOA Minimization Plan based on data generation in a reissued permit, a general schedule for PFOS and PFOA Minimization Plan permit implementation procedures, and PFOS and PFOA 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 discharged effluent, 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 PFOS and PFOA Minimization Plan in accordance with the timelines in the rule and WPDES permit schedule. The permittee must also continue sampling for PFOS and PFOA. The department expects 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 based standard. The rule allows for up to 85 months of PFOS and PFOA minimization plan implementation. At subsequent permit reissuances after the department’s initial determination that a permitted discharge may exceed the PFOS or PFOA standard, for a maximum period of up to 85 months, the department will evaluate progress in source reduction activities and proposed activities for the next permit term and also evaluate the effluent quality of the permitted facility. The proposed rule provides:
—If levels of PFOS or PFOA in the effluent have been eliminated or reduced to a concentration where there is no longer reasonable potential to exceed the standard, then the department may remove future scheduled actions, the permittee will be required to maintain effluent quality at levels that would not have the reasonable potential to cause or contribute to the exceedance of PFOS or PFOA standards, and continued monitoring may be required in the permit.
—If there is still reasonable potential to exceed the standard the department may request updates be made to the PFOA and PFOS minimization plan and may include revised related terms and conditions, including revisions to the schedule in the reissued permit.
Because past pollutant minimization plans for other 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.
