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. Storage:
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.
Containment:
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.
Treatment:
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.
Disposal:
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.
The 2021 PFAS Action Act was introduced on April 13, 2021. This bill proposes requiring the EPA to promulgate rules regarding proper storage and disposal of PFAS-containing materials and fluorinated foam, and also proposes issuing guidance on minimizing the use of or contact with fluorinated firefighting foam by first responders.
7. If Held, Summary of Comments Received During Preliminary Comment Period
and at Public Hearing on the Statement of Scope: The department held a preliminary public hearing on the statement of scope on June 4, 2020. Seventeen members of the public attended the hearing, including two from the Department of Transportation, and one person spoke in support of the scope statement.
Only one comment was made at the hearing: The President of the Wisconsin State Fire Chiefs Association testified that the group has been involved from the beginning of the PFAS foam subject, partnering with the department on multiple occasions, and wants to be a partner in the solution. They want a safe environment for the public they serve. They are disappointed that the initiative doesn't include some type of depository system across the state for fire departments to dispose of their foams efficiently. Finding disposal options is a huge financial hardship for fire departments across the state. They want to support what is best, support this act going forward, but they need help with disposal.
The department received six written comments in support of the proposed statement of scope, with comments suggesting language changes or areas on which the rule should focus. A summary of the written comments is below:
Include wholesale distributors of firefighting foam in the list of affected entities
Ensure the rule encompasses all 36 PFAS compounds for which health-based standards are being researched by the Department of Health Services
Suggestion that the rule may require product testing for fluorine content of firefighting foam
The final rule should define “fluorine-free foam”
“Safe disposal” should not include incineration
Containment, treatment, and disposal and storage measures should be expanded to minimize release to the environment
All entities using firefighting foam should keep records
Rule should consider PFAS air emissions
The department should provide guidance to any entity switching their equipment to fluorine-free formulations and on proper management of retired fire suppression equipment and productsThe department considered these comments during the drafting of the emergency rule, WA-06-20(E).
8. Comparison with Similar Rules in Neighboring States: Illinois had legislation proposed in 2020, SB3154, that would prohibit the knowing manufacture, sale, offering for sale, distribution for sale, or distribution for use of foam containing intentionally added PFAS. This legislation would also require manufacturers of foam containing intentionally added PFAS to register with the Illinois EPA and pay to the EPA an annual registration fee of $5,000. This legislation wasn’t voted upon but was re-introduced in 2021 as SB0561. Additional proposed firefighting foam-related legislation, HB5003, proposed prohibition of the use of foam containing intentionally-added PFAS for training purposes and also testing purposes, unless the facility has implemented appropriate containment, treatment and disposal measures. This legislation wasn’t voted upon but was re-introduced in 2021 as HB3635 and SB2512. Bill HB3190 was also introduced in 2021 and proposes prohibition of incineration of any PFAS substance, including AFFF firefighting foam. Indiana’s House Bill 1189 was signed into law on March 30, 2020 as IC 36-8-10.7 and prohibits the use of Class B firefighting foam containing an intentionally added PFAS: (1) for training purposes; and (2) for testing purposes, unless the testing facility has implemented appropriate measures to prevent releases of the firefighting foam to the environment. As of May 2021, Iowa has a non-binding guidance “action plan” to identify and minimize PFAS exposures, prevent future releases, and provide education and outreach. HF 2241 failed to pass last session. HF 2241 would have prohibited the manufacture and sale of firefighting foam containing PFAS, prohibit the use of PFAS foam for training purposes, and require manufacturers of firefighter protective equipment to disclose the inclusion of PFAS in their products. Iowa DNR is developing a plan to assess risk to public water supplies from PFAS and may sample the higher risk facilities in the future.
Michigan has created by executive order a PFAS action team to identify, recommend, and implement responses to PFAS contamination. Several bills focused on fire departments and fire fighter activities have been passed by the MI legislature: Section 324.14705 establishes a PFAS firefighting foam collection program at the Department of Environment, Great Lakes, and Energy (EGLE). Section 324.14703 requires immediate reporting of the use of firefighting foams with intentionally added PFAS. Section 29.369c bars the use of PFAS firefighting foam in firefighting training, and requires proper training for the emergency use, handling, storage, disposal and cleanup of PFAS foam. Section 408.1014r calls for rulemaking to be promulgated by the Department of Labor to establish best practices for handling and storing PFAS foam by emergency responders, ban the use of PFAS foam for training purposes, and to end the use of PFAS foam for equipment calibration unless certain stringent conditions have been met. Michigan recently announced it had collected and disposed of approximately 51,400 gallons of PFAS-containing firefighting foam through a clean sweep type program. Michigan recommends that fire departments use only Class A foam unless Class B foam is needed to protect human life or critical infrastructure, and that they train only with Class A foams. 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.
