An emergency rule that seeks to limit the testing of firefighting foam that contains so-called “forever chemicals” will go before state lawmakers now that the state Natural Resources Board has adopted the measure.
The rule, should the Legislature take it up, is sure to inspire lobbying by industry groups critical of the regulations and consumer advocates who favor it.
The Natural Resources Board, the policy-setting arm of the Wisconsin Department of Natural Resources, voted 5-2 Wednesday on the measure after nearly two hours of debate and comment from board members, industry leaders and members of the public.
The rule is meant to clarify and set standards set forth in Act 101, which the Legislature passed late last year and went into effect on Sept. 1. The bill prohibits companies that manufacture PFAS-containing firefighting foam from testing the substances without proper containment and treatment.
The bill allows fire departments to use foam containing PFAS during emergencies, such as for fires at airports or oil refineries, or in the case of testing facilities with proper treatment facilities, according to documents.
PFAS, or per- and polyfluoroalkyl substances, are a group of man-made chemicals used for their water- and stain-resistant qualities in products like clothing and carpet, nonstick cookware, packaging and firefighting foam. The chemicals are persistent, remaining both in the environment and human body over time. Accumulation of the chemicals in the body has been linked to cancer, studies have shown, or other adverse health effects.
As passed by the board, the emergency rule sets “action levels” that can be used by the department to determine if treatments are effective. The rule allows for facilities to use carbon filtration, incineration or a custom system approved by department employees. Companies will be required to do routine testing for 14 PFAS chemicals commonly found in firefighting foam to ensure the treatment systems are operating correctly.
Darsi Foss, the administrator of the environmental management division for the DNR, said the rule recognizes the fact that proper disposal of PFAS needs to be standard because the chemicals can’t just be tossed in a bin and forgotten or washed away.
“The prohibitions established by this law recognize that our landfills, and especially our wastewater treatment systems are not designed to immobilize or destroy PFAS,” she said. “It is a highly mobile substance that does not degrade in the environment.”
One change to the rule since an August presentation is that the action levels are only a cause for reevaluation. They are not levels that can be enforced by the department.
The rule is expected to cost testing facilities between $2.3 million and $4 million per year and decrease over time as PFAS-containing firefighting foam is phased out of use. Costs could be higher, depending on the cost of storage, containment, treatment and disposal.
Though the price seems steep, it’s actually less expensive than treating entire wastewater systems or dealing with extensive plumes of pollution, Foss said.
“I think this is a good way to prevent this at the source rather than passing it on to communities to deal with,” Foss said in an interview Thursday. “It’s cheaper to have these treatments be in place than spending millions of dollars dealing with contaminated biosolids or contamination in our soil or water.”
Industry groups oppose rule
The board has been looking at the emergency rule for months and listening to feedback. For the most part, environmental advocacy groups and members of the public have been in support of the rule, while industry groups have said that the limits the rule imposes are outside the board’s ability to set.
Among those pushing back on the measure were the Wisconsin Manufacturers & Commerce, the Wisconsin Paper Council and the Wisconsin Food Products Association. The groups, which expressed their concern in a pages-long letter, said the amount of chemicals allowed in the water leaving industrial facilities through wastewater systems was too small, making the guidelines nearly impossible to adhere to.
Scott Manley, the executive vice president of government relations for the WMC, pushed back against the rule during the Wednesday meeting, telling board members they didn’t have the authority to put in place any standards when it comes to PFAS present in water. He also noted that the rule was “ridiculously stringent” as written.
“It takes the level of regulation far beyond what the Legislature intended,” he told the board during the Wednesday meeting.
In an interview Thursday, Manley said the WMC is disappointed in the DNR and the board. He said they went too far with the emergency rule, which will likely result in the Legislature having to strike it down.
“If the DNR thinks it’s a good idea for new standards for 14 different PFAS compounds and if they think it’s a good idea to regulate everything PFAS comes into contact with, they should go to the Legislature and do that,” Manley said. “In the absence of that, they don’t have the authority.”
Residents living near the contamination rebuked lobbying groups during the Wednesday meeting over the removal of firm standards from the rule though. Jeff Lamont, a resident of Peshtigo, has been dealing with contaminated water at his home for years, which originated at the firefighting foam testing facility run by the Johnson Controls subsidiary Tyco Fire Products in Marinette. His family has been drinking and cooking with bottled water for the last three years because of PFAS, he said.
“I’m very concerned about how WMC and some of the other lobbying groups are again trying to put their business interests over the health and safety of citizens in this state,” he said. “And frankly, the public is sick and tired of money and profits being put over the health and safety of our community. Is clean water really too much to ask for? For us, our children and our grandchildren?”
Laura Schulte can be reached at firstname.lastname@example.org and twitter.com/SchulteLaura.