Minnesota passed legislation that took effect July 1, 2020 (Section 325F.072 of MN Statutes) requiring that any Class B firefighting foam containing PFAS that is used on a fire must be reported to the State Fire Reporting System within 24 hours. It also prohibits use of PFAS-containing firefighting foam for testing and training unless appropriate containment, treatment and disposal measures are implemented to prevent releases of foam to the environment. Minnesota is currently working on guidance related to proper containment, treatment and disposal measures. As of January 2021, Arizona, Georgia, Indiana (as mentioned above), Kentucky, Maryland, Minnesota (as mentioned above), Virginia and Wisconsin have enacted legislation prohibiting the use of foam with intentionally added PFAS, with a testing exemption. Of those states, Arizona, Indiana, Maryland, Minnesota, Virginia and Wisconsin include the word “appropriate” regarding the measures needed for containment, treatment and disposal. Wisconsin is the only state that has directed an agency to conduct rulemaking regarding their PFAS-containing foam legislation. Wisconsin is the only state tasked with determining the “appropriate” measures to prevent discharges of PFAS-containing foam to the environment. New Hampshire’s ban on PFAS-containing foams included a provision that allowed for testing of Class B foams only if evaluated by their department of environmental services. The New Hampshire legislature did not direct the department to promulgate criteria for determining such evaluation.
Washington, New York, and Colorado have prohibited the use of PFAS-containing foams with no exception for testing or emergency use and therefore have considerably more strict regulations than proposed in this permanent rule.
9. Summary of Factual Data and Analytical Methodologies Used and How Any Related Findings Support the Regulatory Approach Chosen: The department is required by statute to promulgate rules to implement and administer s. 299.48, Wis. Stats., including to determine appropriate containment, treatment, and disposal or storage measures for foam testing facilities. The department reviewed extensive information from the Interstate Technology Regulatory Council (https://pfas-1.itrcweb.org/) that has developed fact sheets about PFAS and firefighting foam. Additional information was used from foam and PFAS guidance documents created by the U.S. Department of Defense, the National Fire Protection Association, the Commonwealth of Australia, and other states, including the Michigan PFAS Action Response Team. The department also discussed foam management issues with the Wisconsin State Fire Chiefs Association, Wisconsin Technical College staff (related to fire fighter and inspector training), the Wisconsin Airport Management Association, the Wisconsin Department of Safety and Professional Services staff, and colleagues in other states. 2019 Wisconsin Act 101 (Act 101) required the department to promulgate an emergency rule (WA-06-20 (E)) regarding appropriate containment, treatment and disposal or storage measures to prevent discharges of foam to the environment at testing facilities that would be in effect until three years after the effective date of s. 299.48, Wis. Stats., (February 7, 2023), or until a permanent rule takes effect. The emergency rule was approved by the Natural Resources Board on October 28, 2020. However, portions of the emergency rule were suspended by the Wisconsin Joint Committee for Review of Administrative Rules (JCRAR) on December 18, 2020. JCRAR indicated that the emergency rule exceeded statutory authority and failed to comply with legislative intent of Act 101. Legislation was also introduced (2021 AB13 and SB34) to prevent the department from promulgating the portions of the emergency rule that were suspended. As of December 8, 2021, the proposed 2021 AB13 and SB34 have not been enacted. Under s. 227.26(2)(L), Wis. Stats., if JCRAR suspends an emergency rule, the department may not submit to the legislature the substance of the emergency rule as a proposed permanent rule during the time the emergency rule is suspended. Therefore, this proposed permanent rule reflects the version of the emergency rule as suspended by JCRAR. 10. Analysis and Supporting Documents Used to Determine the Effect on Small Business or in Preparation of an Economic Impact Report: In an effort to develop a conservative estimate, the department assumed a majority of business entities affected by the proposed permanent rule are small businesses. Emails and calls were made to industry experts and facilities with fixed foam systems to determine foam amounts; any existing containment, storage, treatment, and disposal activities; testing activities; and current and potential costs. Industry sectors were also contacted for comments on draft emergency rule language during rule development.
The estimated costs are based upon outreach conducted during the emergency rule writing process in 2020 and outreach conducted during the economic impact public comment period in 2021. The department has solicited additional input from the Wisconsin State Fire Chiefs Association regarding estimated costs to fire departments as a result of the rule. The portions of the emergency rule that were suspended by JCRAR have been omitted; the proposed permanent rule is consistent with the emergency rule in effect and is generally consistent with common business practices already in place.
11. Effect on Small Business (initial regulatory flexibility analysis): Small businesses impacted by this proposed permanent rule include various facilities that use Class B firefighting foam in their fixed fire suppression systems, facilities that test foam, and facilities that provide storage, containment, treatment, or disposal services.
Storage: Minimal additional economic impact is expected; new requirements for facilities may lead to the purchase of additional storage/containers needed for foam, additional labor costs associated with labeling and inspection, and the purchase of materials to prevent discharge to the environment. There will be additional costs associated with these requirements, but these costs are not anticipated to be significant.
Containment, treatment and disposal: A moderate economic impact is expected. It is estimated that approximately 150 to 200 fixed fire suppression systems within public and private facilities utilize Class B firefighting foam. A survey of facilities with fixed-foam systems indicated that these fixed systems are primarily in areas with existing containment, resulting in minimal to no economic impact. Industry experts estimated that system testing and resultant foam disposal costs will increase for these facilities, and cost approximately $3,000 to $20,000 per facility. Assuming 200 facilities in the state, the statutory and rule requirements would range in impact from approximately $600,000 to $4,000,000 per year, with the midpoint estimate of $2,300,000. However, costs are expected to lessen over time with adoption of alternative methods such as surrogate and water equivalency testing and using replacement foams that do not contain PFAS. This is a high cost estimate because much of these costs are already being incurred as a result of s. 299.48, Wis. Stats., which prohibits discharging foam into a storm or sanitary sewer. Although they are not small businesses, the department is aware of only a few foam manufacturing facilities in Wisconsin that would conduct testing. One manufacturer is developing its own treatment facility and others may be using contractors to collect and manage foam generated from testing. The foam manufacturer building a new testing facility expressed to the department that it had plans to transition from manufacturing foam with PFAS, to manufacturing and testing foams that are PFAS-free.
Estimated costs for management, containment and proper disposal of firefighting foams with intentionally added PFAS are anticipated to be less than the cost to clean and remediate uncontrolled discharges to the environment and subsequent remediation. This rule does not prohibit the manufacture, sale, or distribution of Class B firefighting foam that contains intentionally added PFAS.
12. Agency Contact Person: Mimi Johnson; Department of Natural Resources, PO Box 7921,
13. Place where comments are to be submitted and deadline for submission:
A public comment period was held from September 27 to November 11, 2021, with a public hearing on November 4, 2021.
RULE TEXT
Section 1 NR 159 is created to read:
MANAGEMENT OF CLASS B FIREFIGHTING FOAM
NR 159.01 Purpose. The purpose of this chapter is to establish the appropriate containment, treatment, and disposal and storage measures when testing Class B firefighting foam that contains intentionally added PFAS; to establish consistent, uniform standards and procedures to limit the discharge of Class B firefighting foams, unless the foam is used in emergency firefighting or fire prevention operations; and to clarify recordkeeping and notification requirements. This chapter is adopted under s. 299.48, Stats. NR 159.02 Applicability. (1) This chapter applies to any person conducting testing of foam that contains intentionally added PFAS, including calibration testing, conformance testing, or fixed-system testing, to evaluate its effectiveness or testing of a firefighting foam delivery system or equipment.
(2) This chapter applies to any person that uses or discharges foam that contains intentionally added PFAS including use as part of an emergency firefighting or fire prevention operation.
(3) This chapter applies to any person that contains, treats, disposes, or stores foam from a testing facility or generated as a result of testing.
(4) The prohibitions and requirements in this chapter apply to foam that is in concentrate or that is mixed with water, liquids, or other substances. No person may discharge foam to a storm or sanitary sewer or to the environment unless the discharge meets the treatment requirements of this chapter and the discharge is in accordance with all other applicable environmental regulations.
(5) This chapter may not be construed as prohibiting the manufacture, sale, or distribution of foam that contains intentionally added PFAS.
NR 159.03 Definitions. In this chapter:
(1) “Calibration testing” means the comparison of measurement values delivered by a device under testing with those of a calibration standard of known accuracy.
Note: Calibration testing is typically associated with the installation, maintenance, and repair of emergency fire suppression and firefighting equipment.
(2) “Class B firefighting foam” has the meaning specified in s. 299.48 (1) (a), Stats. Note: Under s. 299.48 (1) (a), Stats., “Class B firefighting foam” means a foam designed for use on a flammable liquid fire, which may include a dual action Class A and B foam. (3) “Conformance testing” means testing or other activities that determine whether a process, product, or service complies with the requirements of a specification, technical standard, contract, or regulation.
(4) “Container” means any device in which a material is stored, transported, treated, disposed of, or otherwise handled.
(5) “Containment” means use of a container or secondary containment structure or device to keep foam under control or within boundaries.
(6) “Department” means the department of natural resources.
(7) “Discharge” has the meaning specified in s. 292.01 (3), Stats. Note: Under s. 292.01 (3), Stats., “discharge” means, but is not limited to, spilling, leaking, pumping, pouring, emitting, emptying, or dumping. (8) “Dispose” or “disposal” means the discharge, deposit, injection, dumping, or placing of any solid waste into or on any land or water.
(9) “Emergency firefighting” means the act of attempting to prevent the spread of or extinguishing unwanted fires.
(10) “Environment” has the meaning specified in s. NR 700.03 (18). Note: Under s. NR 700.03 (18), “environment" means any plant, animal, natural resource, surface water (including underlying sediments and wetlands), groundwater, drinking water supply, land surface and subsurface strata, and ambient air within the state of Wisconsin or under the jurisdiction of the state of Wisconsin. (11) “Fire prevention operation” means measures and practices directed toward the prevention and suppression of unwanted fires.
(12) “Fire suppression system” means a system used to extinguish or prevent the spread of fire through the application of a substance.
(13) “Fixed system” means a permanently installed fire suppression system designed for use on the specific fire hazards the system is expected to control or extinguish.
(14) "Foam" means class B firefighting foam as defined under s. 299.48 (1) (a), Stats. (15) “Foam that contains intentionally added PFAS” means foam in which PFAS is a constituent of the foam added during the manufacturing process.
(16) “Method detection limit” means the minimum measured concentration of a substance that can be reported with 99 percent confidence that the measured concentration is distinguishable from method blank results. The method detection limit is generated as defined in s. NR 149.03 (46). (17) “Person” has the meaning specified in s. 299.01 (10), Stats. Note: Under s. 299.01 (10), Stats., “person” means an individual, owner, operator, corporation, limited liability company, partnership, association, municipality, interstate agency, state agency, or federal agency. Note: Under s. 299.48 (1) (b), Stats., “PFAS” means a perfluoroalkyl or polyfluoroalkyl substance. (19) “Safety data sheet” means a document that contains safety and safe handling information in respect to the product, including protection information regarding human health, and may include information on protection of the environment.
(20) “Storage” means storing on a temporary basis for future use or future treatment or disposal in such a manner as not to constitute ultimate disposal.
Note: Under s. 299.48 (1) (c), Stats., “testing” means the testing of a firefighting foam to evaluate its effectiveness and testing of a firefighting foam delivery system or equipment. (22) “Training” has the meaning specified in s. 299.48 (1) (d), Stats. Note: Under s. 299.48 (1) (d), Stats., “training” means providing first-hand field experience to a person who may use a firefighting foam as part of an emergency firefighting or fire prevention operation. (23) “Treatment” means any method, technique, or process, including thermal destruction, that changes the physical, chemical, or biological character or composition of a contaminant.
NR 159.04 Prohibition and exemptions. (1) Except as provided under sub. (2), no person may use or otherwise discharge, including for training purposes, a class B firefighting foam that contains intentionally added PFAS.
(2) All of the following actions are exempt from the prohibition under sub. (1):
(a) The use or discharge by any person of a class B firefighting foam that contains intentionally added PFAS as part of an emergency firefighting or fire prevention operation.
(b) The use by any person of class B firefighting foam that contains intentionally added PFAS for testing purposes, including calibration testing, conformance testing, or fixed system testing, if the testing facility has implemented appropriate containment, treatment, and disposal or storage measures, as specified in ss. NR 159.06 to 159.08, to prevent discharges of the foam to the environment. Note: Under s. 299.48 (3) (b), Stats., appropriate containment, treatment, and disposal or storage measures may not include flushing, draining, or otherwise discharging foam into a storm or sanitary sewer. Note: A person responsible under s. 292.11 (3), Stats., for discharges of PFAS to the environment shall follow the applicable requirements in chs. NR 700 to 754 for response action sites. NR 159.05 Notification and recordkeeping. (1) Notification. A person that uses or discharges foam shall do all of the following:
