The statement of scope for this rule, SS 015-20, was approved by the Governor on March 20, 2020, published in Register No. 771B on March 30, 2020, and approved by the Natural Resources Board on June 24, 2020. This rule was approved by the Governor on February 10, 2022.
ORDER OF THE STATE OF WISCONSIN NATURAL RESOURCES BOARD
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.
Analysis Prepared by the Department of Natural Resources
1. Statutes Interpreted: Sections 299.48 and 227.11(2)(a), Wis. Stats.; 2019 Wisconsin Act 101 (s. 2, nonstatutory provisions directing rulemaking) 2. Statutory Authority: Sections 299.48, and 227.11(2)(a), Wis. Stats.; 2019 Wisconsin Act 101 (s. 2, nonstatutory provisions directing rulemaking) 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 (“Act 101”) states that the department shall promulgate rules under s. 299.48(5), Wis. Stats., no later than the first day of the seventh month beginning after the effective date of the subsection. Emergency rules previously promulgated under this subsection remain in effect until three years after the effective date, or the date on which permanent rules take effect. 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: Section 299.13, Wis. Stats. authorizes the department to engage in pollution prevention activities; and ch. 292, Wis. Stats. provides for remedial actions to address environmental pollution and hazardous substance discharges including notification requirements for the discharge of a hazardous substance under s. 292.11, Wis. Stats.
5. Plain Language Analysis: Perfluoroalkyl and polyfluoroalkyl substances (PFAS) 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.
Act 101 created s. 299.48, Wis. Stats., which 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, Wis. Adm. Code, to implement the legislature’s directive to the department to promulgate rules to implement and administer s. 299.48, Wis. Stats. The proposed permanent rule contains the following summarized requirements and fulfills the statutory obligation to determine appropriate containment, treatment, and disposal or storage measures for testing facilities:
Prohibitions and use:
Section 299.48(1), Wis. Stats., prohibits the use of Class B firefighting foams with intentionally added PFAS, including for training exercises. Section 299.48(2), Wis. Stats., provides the use of foam is allowed for emergency firefighting, fire prevention operations, and testing purposes so long as certain requirements are met. These prohibitions and requirements are included in the proposed permanent rule and apply to foam that is in concentrate or that is mixed with water, liquids or other substances., Section 299.48(3)(a), Wis. Stats., creates an exemption from the prohibition on use as part of an emergency firefighting or fire prevention operation. Section 299.48(3)(b), Wis. Stats., creates an exemption from the prohibition on use for testing facilities, so long as the testing facility has implemented appropriate containment, treatment, and disposal or storage measures to prevent discharges of the foam to the environment. Appropriate containment, treatment, and disposal or storage measures may not include flushing, draining, or otherwise discharging the foam into a storm or sanitary sewer. The proposed permanent rule provides appropriate containment, treatment, disposal, and storage measures. The proposed permanent rule is summarized as follows.
Notification and recordkeeping:
Section 299.48(3m), Wis. Stats., provides situations where notification to the department must occur. To fulfill this requirement, the proposed permanent rule further describes any person in possession of foam that may be used for these purposes must maintain records of the amounts of foam kept on site and its safety data sheets.
The proposed permanent rule provides 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.
The proposed permanent rule provides 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.
The permanent rule proposes 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 that the incineration or thermal destruction treatment system can destroy PFAS and reduce or eliminate emissions, in accordance with the operational standards in the proposed permanent rule. The proposed rule clarifies appropriate treatment measures render wastewater containing foam to no longer be considered “foam” subject to the statutory prohibition on discharge to storm or sanitary sewer.
Other appropriate treatment options include treating foam using technologies specified in the proposed permanent 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 proposed permanent rule to prevent foam from discharging to a storm or sanitary sewer. All analytical sample results for PFAS must be made available to the department upon request.
The proposed permanent rule specifies any person choosing to dispose of foam generated as result of testing in Wisconsin shall ensure the foam is treated in accordance with this proposed permanent 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. The rule requires foam disposed of in Wisconsin may only be disposed of at a licensed solid waste facility.
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. A draft of the guidance was released for public comment on December 18, 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 (e.g., 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.