Substances of public health concern are regulated using groundwater quality standards at two levels: preventive action limit (PAL) and enforcement standard (ES). In accordance with ch. 160, Wis. Stats., ES groundwater quality standards for substances of public health concern are established based on recommendations received from DHS. PAL groundwater quality standards for substances of public health concern are set at either 20% of the concentration of the established ES, or at 10% of the concentration of the established ES if the substance has carcinogenic, mutagenic or teratogenic properties or interactive effects. The department previously initiated the rulemaking process for all substances contained in the Cycle 10 DHS recommendations (as relevant here, PFOA and PFOS) under a single scope statement, DG-15-19. The Natural Resources Board did not approve the proposed DG-15-19, and the scope statement for that rulemaking expired on March 3, 2022.
Since that rulemaking effort, the department has successfully promulgated rules setting standards for PFAS in drinking water and surface water, which went into effect in on August 1, 2022. Additionally, on June 15, 2022, the EPA announced a new interim HA for PFOA and PFOS and a final HA for PFBS and GenX. Additionally, EPA has announced it will release a draft PFAS National Drinking Water Regulation by the end of 2022. The department will consider these important EPA benchmarks in this rulemaking effort to ensure that the proposed standards are based on the most current and accurate peer-reviewed science available.
This proposed rule will add individual and combined ESs and PALs to s. NR 140.10, Table 1, Wis. Adm. Code, for certain PFAS. These standards will be based on existing DHS recommendations. The department may request that DHS revise its recommended ESs pursuant to s. 160.07(6), Wis. Stats., in light of new and changed federal numbers for certain PFAS. Policy alternatives
Section 160.07(5), Wis. Stats., directs the department to propose rules establishing DHS recommendations for ES for substances of public health concern. During the rulemaking process, the department may adopt or modify the proposed standards, based on consideration of EPA recommendations and public input on the proposed standards. One alternative would be to not promulgate groundwater standards for these substances of public health concern. Without numerical health-based standards, groundwater regulatory programs will not protect the public health of Wisconsin residents. 4. Detailed explanation of statutory authority for the rule (including the statutory citation and language):
Chapter 160, Wis. Stats., establishes an administrative process for developing numerical state groundwater quality standards to be used as criteria for the protection of public health and welfare by all state groundwater regulatory programs. Chapter 160, Wis. Stats., directs the department to use this administrative process to establish numeric groundwater quality standards for substances of public health or welfare concern, found in, or having a reasonable probability of being detected in, the groundwater resources of the state. The department is required to engage in rulemaking for all substances of public health concern for which DHS develops enforcement standard recommendations under s. 160.07(5), Wis. Stats. The department is also required to establish by rule preventative action limits for all substances with enforcement standards unders. 160.15(1), Wis. Stats. Section 160.07(6), Wis. Stats., gives the department authority to, upon request, determine whether an enforcement standard needs revision if a federal number is established or changed for a substance after an enforcement standard is recommended by DHS. After the department promulgates groundwater standards, s. 160.19, Wis. Stats., requires regulatory agencies to review existing rules that regulate activities, practices, and facilities to ensure compliance with new groundwater standards. Section 281.15, Wis. Stats., states that the department shall promulgate rules setting standards of water quality, applicable to the waters of the state, that protect the public interest, including the protection of public health and welfare, and the present and prospective future use of such waters for public and private water systems. Section 281.19(1), Wis. Stats., grants the department the authority to issue general orders and adopt rules applicable throughout the state for the construction, installation, use and operation of practicable and available systems, methods and means for preventing and abating pollution of the waters of the state. In accordance with ch. 160, Wis. Stats., the reliability of sampling data is to be considered when determining the range of responses that a regulatory agency may take, or require, to address attainment or exceedance of a state groundwater quality standard at an applicable “point of standards application.” Section 299.11, Wis. Stats., authorizes the department, in conjunction with the Department of Agriculture Trade and Consumer Protection (DATCP), to establish uniform minimum criteria for laboratories certified to conduct water analysis testing, and to establish accepted methodologies to be followed in conducting tests and sampling protocols and documentation procedures to be followed when collecting water samples for testing. 5. Estimate of amount of time that state employees will spend developing the rule and of other resources necessary to develop the rule:
The estimated staff time needed to develop these amendments to ch.NR 140, Wis. Adm. Code, is approximately 1600 hours (over an anticipated 30 month period). 6. List with description of all entities that may be affected by the proposed rule:
The proposed groundwater standards would apply through other regulatory programs outside of ch. NR 140, Wis. Adm. Code, that regulate facilities, practices and activities which may impact groundwater quality. Once adopted, numerical groundwater standards become the criteria for protecting public health, and are used in the regulation of:
— Solid and hazardous wastes
— Spills and remediation sites
— Wastewater and water quality
— Septic tanks
— Salt storage
— Fertilizer and pesticides, etc.
7. Summary and preliminary comparison with any existing or proposed federal regulation that is intended to address the activities to be regulated by the proposed rule:
There are no federal groundwater standards, and there is no parallel process for regulating groundwater contaminants at the federal level.
8. Anticipated economic impact of implementing the rule (note if the rule is likely to have an economic impact on small businesses):
The department will examine the economic impact of the proposed rule when the rule is developed. Additional review and modification of regulatory program rules that rely on ch. NR 140 groundwater standards may impact the estimated cost of implementation and compliance. The economic impact to small businesses is indeterminant until the rule is drafted. State groundwater quality standards protect both public health and welfare. There may be cost savings in reducing the exposure to these known substances of public health concern. Human health impacts and drinking water treatment system costs to remove contamination may be avoided when groundwater pollution is reduced or eliminated. Adoption of groundwater quality rules and regulations by state regulatory programs minimizes the concentrations of polluting substances in groundwater, minimizes water treatment system costs and health care costs, while safeguarding public health and welfare.
9. Anticipated number, month and locations of public hearings:
The department anticipates holding one public hearing in the month of July 2024. The hearing will be held by videoconference. The department will hold the hearing to gather stakeholder input on a rule package that is used statewide.
Contact Person: Bruce Rheineck, (608) 266-2104
