Natural Resources Board adopts PFAS standards for drinking, surface waters

Natural Resources Board is moving forward to set the standards
Published: Feb. 23, 2022 at 2:52 PM CST
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MADISON, Wis. (WSAW) - In a heated Natural Resources Board meeting discussing per- and polyfluoroalkyl substances, commonly known as PFAS, standards, the board ultimately approve two of the three proposed standards. The approved standards will head to the governor’s desk and the legislature for consideration.

The Department of Natural Resources with recommendations from the Department of Health Services had been working on PFAS standards proposal for surface, drinking, and groundwater since the fall of 2019. The surface water standard unanimously moved forward as proposed, with the PFOS compound limited at 8 parts per trillion, and 20 parts per trillion for the PFOA compound.

That standard is based on preventing health problems for when people would have contact with surface water, such as lakes or rivers, if people were to ingest that water, like while swimming, or when people eat fish that swim in those waters. It also provides protocols for directing and enforcement of the sources of the contaminate to reduce those levels. This standard had broad support from the public and businesses.

PFOA and PFOS are largely no longer used in the United States, but can be brought in. There also could be residual remnants from when those compounds were more widely used in the country.

An amended drinking water standard was also approved, but not at the 20 parts per trillion recommendation. Instead, it was limited at 70 parts per trillion, which is the health advisory the Environmental Protection Agency issued in 2016.

”I don’t believe 70 represents a good standard for health, and I don’t believe it’s aspirational in any way, but I also recognize there will be some benefit to getting a rule passed today to initiate some of the sampling of the data collection,” NRB secretary, Bill Smith noted ahead of his vote to approve the standard.

There was a lot of debate around this and the groundwater standard proposals for similar reasons. Frankly, about half the NRB did not believe the information the DNR nor DHS provided, specifically as it relates to the economic impact analysis following the Wisconsin Manufacturers and Commerce’s accusations.

“I’m here today to explain why the three PFAS rules before you today are not lawfully before you and why they failed to comply with Wisconsin law and why you can’t approve them today in their current form,” Scott Manley a lobbyist for the Wisconsin Manufacturers & Commerce began his comments.

“The first being the DNR’s failure to follow rulemaking requirements relative to the economic impact analysis or EIA, and second the unlawful use of combined standards. Both of these problems are grounds for invalidating the rules under Section 227.40 of the Wisconsin statutes.”

With regards to the testing of DNR permitted companies and the department’s regulating authority that Manley also challenged, referencing its lawsuit against the DNR in Jefferson County, Cheryl Heilman, the DNR’s general counsel responded. She said that while the judge issued a ruling, he is reconsidering that ruling on an aspect of the case and will be holding a hearing Thursday related to it.

“So I would say with respect to the litigation and the department’s authority, that the jury is still out,” she stated.

When it comes to the combined standard, Heilman explained why the proposed standards were written that way.

“The reason for the combined standard is because PFOS and PFOA act on the human body in the same way, and they’re found in combination and so the Department of Health Services made a recommendation for each comp- for each substance that the level should be 20 either individually or combined. We believe that’s well within our authority.”

Then there is the DNR’s EIA estimate. It came a little under $10 million. Wisconsin law requires that if an EIA during the rulemaking process goes above $10 million, it must go before the legislature to receive approval to continue with the rulemaking process.

“There are two items in play here: it’s beliefs and truths,” DNR secretary, Preston Cole stated defending his department’s work. He argued members were making accusations that the estimated costs associated with the various standards were not truthful without providing any solid evidence.

“If you’re going to take on the DNR and how we go about doing our business, we would tend to think that you would have something laid before us by saying, ‘here is what I believe to be true,’ he continued. “Well, easy in today’s world to come to a meeting and just say, ‘I don’t believe you,’ and use that as a grounds to negate public health. Not one iota of information laid before any board member here to substantiate his accusations right here. That’s frivolous.”

Several board members, including Bill Bruins disagreed with that, saying after speaking with some individuals about well-drilling amounts for municipalities that were around the $1 million range, not the $50,000 that had been brought up in the proposal. However, Steve Elmore, the DNR’s drinking water and groundwater program director, clarified later that the estimates considered treatment of municipal wells rather than drilling of new wells, and that the $50,000 estimate was for private well owners.

While the WMC and the American Chemistry Council, both of which represent companies in north-central Wisconsin, argued there were legal issues with the proposed standard that the board should wait until the EPA creates a standard, there was less opposition to the EPA’s 2016 health advisory limit of 70 parts per trillion. Some board members argued that the latest science and recommendations from the state agencies put that limit lower, due to more recent research showing impacts to unborn children above 20 parts per trillion. They said the board can set the limit lower if the science supports it, especially as the EPA is finding health concerns at levels as low as nearly zero, less than one part per trillion.

Ultimately, with the disbelief on part of the board, the drinking water standard moved forward with the higher limit. The groundwater standard was scrapped and with the deadline to get the standard approved coming March 3, the state will likely have to start the process from the beginning in order to set any kind of standard. The groundwater standard also included other contaminates, including the chemical found in Roundup.

Wausau city leaders also provided comment at the meeting Wednesday, pleading with the board to adopt standards.

”The last four weeks have been an absolute snarly mess thanks to PFAS,” Mayor Katie Rosenberg began.

“Wausau currently finds itself in a uniquely challenging position, given all of its municipal wells for drinking water are impacted beyond the proposed state standard for PFAS,” Tom Kilian, an alderperson representing district three said.

“I’ve pleaded with our partners in state and federal government to help guide us through this, but since there isn’t a regulatory standard, we’re in the worst form of limbo,” Rosenberg continued.

“If we wait for EPA to set standards, DNR will need to start the rule-making process all over and it could take another 30 months beyond EPA standards or until 2025 or 2026,” John Robinson, a volunteer with Wisconsin Greenfire and Wausau Water Works commissioner explained.

One board member who also lives and works in Wausau, Dr. Fred Prehn, criticized the city’s response, specifically Mayor Rosenberg.

“It’s troubling the hysteria that that town is going through right now and a lot of it is because of the government because of you and the government,” he scolded in part. “The Wausau municipality has been known for clean water in that state for generations. And because you unilaterally decided two years ago to have the wells tested voluntary, you knew the PFAS--combined PFAS level, which is another debated point, was over 20. It stayed hidden two weeks ago it pops up and it becomes a crisis.”

After he finished his comment to her, Mayor Rosenberg asked if there was a question in his comment he wanted her to answer. He asked why she was doing it. She said she was taking direction from the DNR and DHS to alert the public.

“My statement has remained consistent that we would get below 20 parts per trillion, like the DNR and the DHS is suggesting. So that has been my statement. It is not been hysteria. I actually told people not to panic.”

Mayor Rosenberg has repeatedly said she was personally not aware that the test results from 2019, tests that were conducted prior to her taking the office, were above the state’s recommended limit. She told NewsChannel 7 later that her reason for testifying was to ensure other municipalities would not have to go through Wausau’s experience.

”We’re kind of stuck in limbo here in a way that is really confusing and the public’s confused and we still have to make that decision, right? We don’t get to squirm our way out of it or punt it to the federal government, like this is on us. We have to decide.”

While the approved drinking water standard is moving forward at 70 parts per trillion, the health recommendation remains at 20 parts per trillion and Mayor Rosenberg and other city leaders have said they will work to reduce PFAS levels as much as is possible. She said she was meeting with the EPA Thursday to help determine possible short-term solutions to get people PFAS-free water.

Kilian sent NewsChannel 7 a response to the board’s outcomes.

“The drinking water standard passed today is a politically manipulated number. It appeared that lobbyists and big-money interests had a tremendous influence on the process and outcome. I am committed to providing Wausau residents with clean and safe water based on DHS health guidance, and have no intention of veering from the policy path that I laid out last night to achieve that – in fact, I will redouble it.”