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Wisconsin Legislature blocks limits on PFAS firefighting foam it paved way for last session
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Wisconsin Legislature blocks limits on PFAS firefighting foam it paved way for last session

Starkweather Creek PFAS (copy) (copy)

Foam found on the banks of Starkweather Creek showed high concentrations of a contaminant called PFAS.

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The Republican-led Wisconsin Legislature has effectively blocked part of the Department of Natural Resources' proposed limits on PFAS contamination. The move comes one year after Gov. Tony Evers signed off on a bill from lawmakers that directed the agency to put forward the language as part of an effort to cap the use of firefighting foam.

While Republicans and industry groups, including the state's largest business lobby, have argued DNR overstepped its authority in issuing components of the language, Democrats and environmental advocates counter the agency was following state law and the Legislature's actions this week undermined that.

The move from the Senate and Assembly on Tuesday targeted not only the proposed PFAS limits but six other agency rules seeking to ban conversion therapy, require seventh graders to get the meningitis vaccine and bar landlords from charging tenants a late fee for rent during the COVID-19 crisis. All the bills were referred to committee, thereby avoiding Evers while allowing lawmakers to maintain their objections to the language.

The PFAS law, Act 101, prohibits the use or discharge of firefighting foam, with limited exceptions, and creates a procedure for getting rid of foam when it's used for testing. Under the law, the DNR was directed to generate rules to outline processes for appropriate containment, treatment, disposal and storage of the foam. A joint legislative panel suspended parts of the language in December, targeting proposed detection levels for 14 PFAS substances in treated wastewater.

It's the issuance of those figures where Wisconsin Manufacturers & Commerce's Scott Manley said the DNR went too far. The numbers, he added, represented a break from "the law and the Legislature's intent." 

"Although the Legislature left it open to the DNR to establish what they think appropriate treatment is, I think what they very clearly indicated as appropriate treatment isn't establishing numeric standards," he said, pointing to a failed amendment from Democrats to the law prior to its passage that would have directed DNR to establish acceptable levels and standards, monitoring requirements and more for PFAS substances. "And that was really at the heart of our disagreement with the approach taken to the rule."

But environmental advocates, including Clean Wisconsin's Carly Michiels, said removing those measures and taking steps this week to sustain those removals through the rest of the two-year session "essentially gutted" the language.

"When you take out some of the most important parts of the rule, which is the treatment and testing, making sure that PFAS aren't getting into the environment at high enough levels to harm public health, I don't really know how the rule is effective and gets at the core of what it's supposed to do, which is ban PFAS in firefighting foam and ban those substances from getting into the environment," she said.

She also questioned the ability of the Legislature to take additional action to curb PFAS this session based on the votes, saying: "If we can't get this tiny protection passed and put in place on one very-small-in-scope part of this entire contamination issue, I don't know how we're going to actually get people the help that they need that are suffering from PFAS in their water."

But Manley said as long as DNR adheres to state law, "I don't think there's going to be a problem."

"The only reason there was a problem is that the DNR decided to add a lot of requirements to their rule that did not align with the law," he said. "So I would say the recipe for success in terms of the DNR and the Legislature and stakeholders working together on future PFAS rules is DNR has to just follow the law."

Evers' budget seeks $20 million in general purpose revenue over the next two years to create a municipal grant program to test for PFAS at the local level, funding nearly a dozen new positions within the Department of Natural Resources dedicated to combating the chemicals and more. The chemicals have been found in all five of Madison's lakes and in other sites across Wisconsin.

It remains to be seen to what extent the budget provisions will be welcomed by the Republican-led Legislature, especially given the departure of the Assembly GOP caucus' highest-ranking advocate for PFAS measures, former Rep. John Nygren of Marinette.

Nygren and Sen. Rob Cowles co-authored Act 101 last session. Cowles was among the two Republican lawmakers who voted against blocking the DNR's PFAS limits Tuesday (the other was Sen. Eric Wimberger, whose district includes Nygren's former seat).

"These things will make that firefighting foam bill work better," Cowles, of Green Bay, said of the provisions in the DNR rule in a floor speech. His office didn't return a request for an interview Wednesday. 

DNR Environmental Management Division administrator Darsi Foss wrote in an email the agency stands by the comments it made during the rules committee hearing in December, in which officials characterized the language as an effort that "constitutes a small, but important, first step to prevent PFAS foam from continuing to enter the environment."

Briana Reilly covers state government and politics for the Cap Times. She joined the staff in 2019, after working at WisPolitics.com. Follow her on Twitter at @briana_reilly.

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