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PFAS: Rules on firefighting foam mired in dispute over definitions
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PFAS | USE IN FIREFIGHTING FOAM

PFAS: Rules on firefighting foam mired in dispute over definitions

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Nearly two months after a new law went into effect restricting the use of hazardous firefighting foams, the Wisconsin Department of Natural Resources is still trying to write rules for enforcing it amid disputes over what is considered foam and how to define effective treatment.

Passed late last year on a bipartisan vote, Act 101 restricts the use of foam containing compounds known as PFAS to emergency situations and testing facilities with “appropriate containment, treatment and disposal measures.”

The law doesn’t define those containment, treatment and disposal measures, however. That’s up to the DNR to do through a rulemaking process.

In August the agency laid out a proposed emergency rule that would remain in effect for three years or until a permanent rule is adopted, a process that typically takes about 2½ years.

But the Natural Resources Board tabled that proposal in August after industry groups and some GOP lawmakers objected to the agency’s definition of foam and proposed limits on the amount of PFAS allowed in treated water that’s discharged.

Industry groups argued that the law doesn’t give the DNR the authority to set numeric “effluent limits” that could allow the agency to cite someone for a violation and that the proposed limits — requiring no detectable PFAS — are too stringent.

“The DNR is seeking to impose a wastewater effluent standard for PFOA and PFOS compounds that is lower than Wisconsin’s proposed 20 (parts per trillion) groundwater standard, creating a situation where the wastewater discharge from an on-site treatment facility has to be cleaner than drinking water,” state Sen. Steve Nass and Rep. Joan Ballweg, co-chairs of the Legislature’s Rules Committee, said in a statement.

Steve Nass

Nass

Industry groups also object to the agency’s attempt to define foam.

The law defines foam as “Class B firefighting foam with intentionally added PFAS,” but foam is typically mixed with water before being sprayed onto fires.

The DNR’s original draft rule expanded the definition to include foam in concentrated or diluted forms, but a new proposed rule instead references “foam-contaminated material.”

After meeting with industry and environmental groups, the new rule also classifies PFAS limits as “action levels” the agency could use to determine if a treatment method is working.

That means if concentrations of any of the proposed compounds are above the limits, the responsible party would have to hold the treated water or modify its treatment system so as to meet the action levels. Failure to do that would result in a violation.

Industry groups, including Wisconsin Manufacturers and Commerce, the Wisconsin Paper Council and the Midwest Food Products Association, are still unhappy with the new proposed rule and want all references to the standards removed.

They suggest instead that the rule simply require treatment technology “be operated and maintained per manufacturer specifications.” But the DNR said none of the manufacturing specifications it reviewed contain any guidance on how to achieve a certain level of treatment.

Environmental groups say the action levels are necessary to ensure compliance with the law, which requires disposal or storage measures “to prevent discharges of foam to the environment.”

Ten groups, including Clean Wisconsin, Midwest Environmental Advocates, the PFAS Community Campaign, Sierra Club and Wisconsin Conservation Voters, have called on the board to adopt the new rule, which they call “an incredibly modest step towards addressing the burgeoning PFAS pollution problem our state faces.”

The groups argue it’s absurd to ask the DNR to prevent discharge of PFAS but not allow the agency to establish parameters for evaluating treatment measures.

“It’s akin to telling someone they must stop horses from escaping the barn but objecting when they repair the broken barn door, because you didn’t say the word ‘door’ when you asked them to solve the problem,” the groups wrote.

Doug Oitzinger

Oitzinger

Doug Oitzinger, a Marinette alderman and former mayor, said the law is unambiguous and was written intentionally to prevent foam from being flushed down the sewer, as it was for years in Marinette, where dozens of wells have been contaminated and hundreds more are being tested.

“There is no ambiguity in the words ‘may not include flushing, draining or otherwise releasing the foam into a storm or sanitary sewer.’ Those words mean zero PFAS foam,” Oitzinger wrote. “Treating the foam to any level above ‘zero’ and discharging it into the sanitary or storm sewers is a violation of the law. Arguing that some level above non-detect would satisfy Act 101 is simply turning the English language on its head.”

The Natural Resources Board is scheduled to discuss the modified rule at its monthly meeting Wednesday.

Frederick Prehn

Prehn

In notes included with the board’s agenda, Chairman Frederick Prehn noted the law does not “specify or require treatment of PFAS foam to ‘undetectable levels,’” nor does it establish numeric limits for any PFAS compounds.

Prehn suggested eliminating any references to numeric standards or attempts to define foam and requiring less-stringent treatment methods.

PFAS are a group of largely unregulated synthetic compounds found in firefighting foam as well as food packaging, non-stick cookware, water-resistant clothing, carpeting and other products, and have been shown to increase the risk of cancer and other ailments.

They have been found in drinking water, groundwater, surface water, soil, sediments, air, fish and wildlife and are present in all of Madison’s municipal wells.

The DNR is monitoring more than 40 PFAS contamination sites around the state, most of which the agency says can be traced to firefighting foam. Several contaminated sites at the Dane County Regional Airport have been linked to training areas used for decades by the Wisconsin Air National Guard and local fire departments.



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