• ATSDR, Toxicological Profile for Perfluoroalkyls, 2021.
• U.S. EPA, Drinking Water Health Advisory for Perfluorooctanoic Acid (PFOA), 2016.
• U.S. EPA, Health Effects Support Document for Perfluorooctanoic Acid (PFOA), 2016.
• U.S. EPA, Drinking Water Health Advisory for Perfluorooctane Sulfonate (PFOS), 2016.
• U.S. EPA, Health Effects Support Document for Perfluorooctane Sulfonate (PFOS), 2016
• IARC, Monograph on the Identification of Carcinogenic Hazards to Humans: Perfluorooctanoic
Acid (PFOA), 2018.
6. Summary of, and Comparison with, Existing or Proposed Federal Statutes and Regulations: The process for the proposed amendment to ch. NR 809, Wis. Adm. Code, to establish certain MCLs for PFAS, including PFOA and PFOS standards, is consistent with the process for establishing rules for other drinking water contaminants regulated under the federal EPA Safe Drinking Water Act, specifically Title 40 - Protection of the Environment; Chapter 1 - Environmental Protection Agency; Subchapter D - Water Programs. The department has a primacy agreement with the EPA to implement the Safe Drinking Water Act. As a result of the PFOA and PFOS findings from EPA’s Unregulated Contaminant Monitoring Rule 3 (UCMR 3) national monitoring of public water supply systems, the EPA issued a PFOA and PFOS HAL in 2016. The PFOA and PFOS HAL was established based upon laboratory animal and epidemiological human studies indicating adverse health effects related to PFOA and PFOS exposure. Adverse health effects included developmental effects of fetuses during pregnancy or to breastfed infants, cancer, liver effects, immune effects and thyroid effects and other health effects.
In February 2019, the EPA released a Per- and Polyflouralkyl Substances (PFAS) Action Plan. One of the four primary actions in the PFAS Action Plan is initiating steps to evaluate the need for an MCL as part of the Safe Drinking Water Act. The EPA is evaluating criteria to propose a national drinking water regulatory determination for PFOA and PFOS. The EPA is highlighting key PFOA and PFOS information gathered to date and additional data needs. The EPA issued a final determination in January, 2021 that they will establish an MCL for PFOA and PFOS, a federal regulatory process that will take several years and would not take effect in Wisconsin until three years after the federal MCL is established.
7. If Held, Summary of Comments Received During Preliminary Comment Period
and at Public Hearing on the Statement of Scope:
American Forest and Paper Association | Oppose | |
Bill and Cindy Verschay, citizens | Support | |
Bob and Anne Maley, citizens | Support | |
Capital Area Regional Planning Commission | Support | |
Casey Hicks, citizen | Support | |
Christine Simpson, citizen | Support | |
Cindy and Chuck Boyle Jr., citizens | Support | |
Citizens for Safe Water Around Badger | Mixed | Support but expresses disagreements including need for regulation of PFAS as a class |
Danika Brubaker, citizen | Support | |
Darcy Lanz-Sage, citizen | Support | |
Earl Witte, citizen | Support | |
Fay Johnson-Lau, citizen | Support | |
Gerald Peterson, citizen | Support | |
Jeffrey Lamont, citizen | Support | |
Kayla and Dean Furton, citizens | Support | |
Lee Lamers, citizen | Support | |
Louise Petering, citizen | Support | |
Mark Sethne, citizen | Support | |
Midwest Environmental Advocates | Support | |
Midwest Food Products Association | Oppose | |
Milwaukee Riverkeeper | Support | |
Municipal Environmental Group (MEG) | Mixed | Supports regulation but wants front-end regulation of sources, involvement in advisory groups, and alternative compliance options |
National Council for Air and Stream Improvement, Inc. | Mixed | Supports science-based effort but has technical issues with DHS toxicity value |
Patrick Meyer, citizen | Support | |
Ralph Kerler, citizen | Support | |
Richard Upton, citizen | Support | |
River Alliance of Wisconsin | Support | |
Robert Elwell, citizen | Support | |
Sam Warp, citizen | Mixed | Comment title is "I support PFAS rules" but comment body discusses regulating the source, not the "back end" |
Sandy Gillum, citizen | Support | |
Satya Rhodes-Conway, Mayor of the City of Madison | Support | |
Vi Lamers, citizen | Support | |
Virginia Geraghty, citizen | Support | |
Water Quality Coalition | Oppose | |
William Evans, citizen | Support | |
Wisconsin Civil Justice Council, Inc. | Oppose | |
Wisconsin Conservation Voters | Support | |
Wisconsin Conservation Voters’ members | Support | Letter includes support from 1103 individual members |
Wisconsin Manufacturers and Commerce | Oppose | |
Wisconsin Paper Council | Oppose | |
Wisconsin Rural Water Association | Oppose | |
American Chemistry Council | Mixed | Supports some aspects and opposes others |
Columbus Water and Light | Mixed | Supports MEG letter/comments |
Glory Adams, citizen | Support | |
La Crosse Water Utility | Mixed | Supports MEG letter/comments |
MEG - Water Division | Oppose | |
League of Wisconsin Municipalities | Mixed | Supports MEG letter/comments |
8. Comparison with Similar Rules in Adjacent States: Other surrounding states have promulgated or proposed PFAS maximum contaminant levels (MCLs) or established Health Based Guidance Levels.
Illinois has proposed PFAS maximum contaminant levels for the following contaminants:
— PFBS - 140,000 parts per trillion
— PFHxS - 140 parts per trillion
— PFNA - 21 parts per trillion
— PFOA - 21 parts per trillion
— PFOS - 14 parts per trillion
— Total PFOA and PFOS - 21 parts per trillion
Iowa implements EPA’s PFAS Health Advisory Level (HAL) for combined PFOA and PFOS at 70 parts per trillion.
Michigan has promulgated PFAS maximum contaminant levels for the following contaminants:
— PFOA - 8 parts per trillion
— PFOS - 16 parts per trillion
— PFNA - 6 parts per trillion
— PFHxS - 51 parts per trillion
— PFBS - 420 parts per trillion
— PFHxA - 400,000 parts per trillion
— GenX - 370 parts per trillion
Minnesota has established the health based guidance levels for the following PFAS contaminants:
— PFOA - 35 parts per trillion
— PFOS - 15 parts per trillion
— PFHxS - 47 parts per trillion
9. Summary of Factual Data and Analytical Methodologies Used and How Any Related Findings Support the Regulatory Approach Chosen: The department proposed MCLs (20 ppt for PFOA and PFOS individually and combined) based on DHS recommendations. An analysis of the available research informed the decision to recommend groundwater enforcement standards to be promulgated into ch. NR 140, Wis. Adm. Code. Generally, these standards are the same as the drinking water standards in ch. NR 809, Wis. Adm. Code. See ss. 160.04(4)(c) and 160.13, Wis. Stats. The Natural Resources Board amended the department’s proposed rule to adopt the EPA’s HAL of 70 ppt for PFOA and PFOS individually and combined. An evaluation of the costs associated with the EPA HAL of 70 ppt was also studied. The majority of states that are or have promulgated MCLs for PFOA and PFOS are similar or lower than 20 ppt.
The proposed monitoring frequency and types of public drinking water systems subject to the proposed MCLs are consistent with the requirements of other Synthetic Organic Contaminants in the Safe Drinking Water Act and ch. NR 809, Wis. Adm. Code. 10. Analysis and Supporting Documents Used to Determine the Effect on Small Business or in Preparation of an Economic Impact Report: The department used data from Michigan’s 2017 – 2019 study of over 1,700 public water systems as a proxy for PFOS/PFOA data that are not yet available in Wisconsin. The department also used national data from EPA’s Unregulated Contaminant Monitoring Rule (UCMR3) program to estimate an average number of systems that might exceed the proposed MCLs in Wisconsin. The average of these two data sets produced an estimate of 1.35% of systems in Wisconsin exceeding 20 ppt for PFOA and PFOS. Small business effects were determined by assuming that all entities that are not large community wells in the Wisconsin estimates in this analysis are potential small business. Detailed assessment of costs are in the economic impact analysis form attached. Sources of factual data used in the analysis include the following:
1. Data from Michigan Environment, Great Lakes and Energy on PFOS/PFAS testing at public water systems between 2017 and 2019. The percentage of wells found to have detections of these compounds, and the percentage of systems with results above 20 ppt.
2. Data from the EPA UCMR3 sampling between 2013 and 2015. The percentage of systems with results above 20 ppt.
3. The analysis cost of PFAS at the Wisconsin State Laboratory of Hygiene.
4. The average cost of drilling a new well in Wisconsin at Non-Community systems.
5. The average cost of drilling a new well in Wisconsin at small community systems.
6. The average cost of treatment for the control of PFAS in other states at municipal water systems.
7. The number of wells in Wisconsin that would be subject to the proposed standards.
11. Effect on Small Business (initial regulatory flexibility analysis): After removing large community water systems from the data set, the remaining small community water systems (other-than-municipal community systems) and non-transient non-community systems were considered to be small business entities for the purpose of this analysis. The department estimated the compliance cost of these entities to be 70% of the total public water systems that may be subject to the originally proposed 20 ppt MCLs. Thus, the monitoring costs for this subgroup are also expected to be approximately 70% of the total. On average, monitoring costs for small community water systems and non-transient non-community systems are estimated to be $1 million in the first year.
The department will allow for monitoring waivers to reduce the frequency of required monitoring at public water systems with no detection levels of PFAS. A detailed assessment of regulatory flexibility is presented in Attachment A of the economic impact analysis, question #4. This includes waivers and staggered monitoring schedules.
13. Place where comments are to be submitted and deadline for submission:
A comment period on the rule was held from November 1, 2021 to December 8, 2021. A public hearing was held on December 1, 2021.
RULE TEXT
Section 1 NR 809.04 (59h) is created to read:
NR 809.04 (59h) “Perfluoroalkyl and polyfluoroalkyl substances” or “PFAS” means a large group of human-made chemicals that are part of the synthetic organic contaminants classification.
Section 2 NR 809.20 (1) Table is amended to read:
NR 809.20 (1) Table
Dibromochloropropane | 0.0002 |
Di(2-ethylhexyl)adipate | 0.4 |
Di(2-ethylhexyl)phthalate | 0.006 |
Ethylene Dibromide | 0.00005 |
Hexachlorocyclopentadiene | 0.05 |
Pentachlorophenol PFOS and PFOA | 0.001 0.000070 |
Polychlorinated biphenyls (PCBs) | 0.0005 |
2,3,7,8-TCDD (Dioxin) | 3x10-8 |
Section 3 NR 809.20 (2) (d) is created to read:
NR 809.20 (2) (d) Granular activated carbon, powdered activated carbon, ion exchange resins, nanofiltration, and reverse osmosis for PFOS and PFOA.
