The statement of scope for this rule, SS 091-19, was approved by the Governor on August 27, 2019, published in Register No. 765A1 on September 3, 2019, and approved by the Natural Resources Board on January 22, 2020. This rule was approved by the Governor on March 2, 2022.
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.
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.