2023 - 2024 LEGISLATURE
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2023 ASSEMBLY BILL 312
June 9, 2023 - Introduced by Representatives MURSAU, SWEARINGEN, BEHNKE,
BINSFELD, DITTRICH, DONOVAN, GREEN, KITCHENS, MOSES, O'CONNOR, SNYDER,
SPIROS, STEFFEN, SUMMERFIELD, WITTKE and GOEBEN, cosponsored by Senators
WIMBERGER, COWLES, BALLWEG, CABRAL-GUEVARA, FELZKOWSKI, FEYEN, NASS
and QUINN. Referred to Committee on Environment.
1 AN ACT to renumber 281.58 (8e); to amend 281.61 (6) and 281.75 (7) (c) 2. a.;
2 and to create 66.0224, 66.0811 (4), 196.03 (7), 196.49 (7), 281.58 (8e) (bm),
3 292.315 and 292.32 of the statutes; relating to: programs and requirements
4 to address perfluoroalkyl and polyfluoroalkyl substances.
Analysis by the Legislative Reference Bureau
This bill creates several new programs and requirements relating to PFAS,
which is defined in the bill to mean perfluorooctanesulfonic acid (PFOS),
perfluorooctanoic acid (PFOA), perfluorohexanesulfonic acid (PFHxS),
perfluorononanoic acid (PFNA), perfluoroheptanoic acid (PFHpA),
perfluorodecanoic acid (PFDA), and any other perfluoroalkyl or polyfluoroalkyl
substance for which a standard has been promulgated under state or federal law.
Municipal PFAS grant program
The bill requires the Department of Natural Resources to create a municipal
PFAS grant program to provide all of the following grants:
1. Grants to municipalities (defined under current law as a city, town, village,
county, county utility district, town sanitary district, public inland lake protection
and rehabilitation district, or metropolitan sewage district), distributed in equal
shares, for PFAS testing at municipal water systems and municipal wastewater
treatment facilities, or for reimbursement for such testing.
2. Grants to nonmunicipal entities regulated as public water systems,
distributed in equal shares up to $1,800, to test their drinking water supply for
PFAS, if required to do so by DNR, or for reimbursement for such testing.
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ASSEMBLY BILL 312
3. Grants to municipalities to test for PFAS levels at municipally owned or
managed locations where PFAS may be present. These grants are not available to
municipalities that receive a grant under this program to test for PFAS at municipal
water systems and municipal wastewater treatment facilities. These grants require
matching funds of up to 20 percent from the applicant.
4. Grants to municipalities to dispose of PFAS-containing biosolids at facilities
that accept such biosolids. These grants require matching funds of up to 20 percent
from the applicant.
5. Grants for capital costs or debt service, including for facility upgrades or new
infrastructure, to municipalities that are small or disadvantaged or in which rates
for water or wastewater utilities will increase by more than 20 percent as a direct
result of steps taken to address PFAS contamination.
6. Grants to municipalities for capital costs or other costs related to PFAS that
are not otherwise paid from the segregated environmental improvement fund,
including costs for addressing applicant-owned contaminated lands or costs
incurred by fire departments. These grants require matching funds of up to 20
percent from the applicant.
For all of the grants provided under the municipal PFAS grant program, DNR
may not require a grant recipient to take any action to address PFAS unless PFAS
levels exceed any existing standard under state or federal law or unless state or
federal law otherwise allows DNR to require the grant recipient to take action. The
bill also prohibits DNR from publicly disclosing the results of any PFAS testing
conducted under this grant program unless DNR notifies the grant recipient at least
72 hours before publicly disclosing any test result.
Innocent landowner grant program
The bill also requires DNR to provide grants to persons that own property with
PFAS contamination that is not known to be the responsibility of the person. The
total amount of grants awarded may not exceed $250,000 and DNR may require
grant recipients to provide matching funds of not more than 20 percent of the grant
amount.
Limitations on DNR actions relating to PFAS
Under the bill, DNR may not require the owner of a brownfield property to test
for PFAS unless DNR has information that the property previously had a substantial
amount of uncontained PFAS. “Brownfield property” is defined to mean abandoned,
idle, or underused industrial or commercial facilities or sites, the expansion or
redevelopment of which is adversely affected by actual or perceived environmental
contamination.
Under the bill, DNR may not prevent, delay, or otherwise impede any
development project or project of public works based on a presence of PFAS
contamination unless DNR determines that 1) the project poses a measurable risk
to public health or welfare, 2) there is a substantial risk that the project would lead
to worsening environmental conditions, or 3) the entity proposing to complete the
project is, as a result of negligence, responsible for the original contamination.
“Public works” is defined to mean the physical structures and facilities developed or
acquired by a local unit of government or a federally recognized American Indian
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tribe or band in this state to provide services and functions for the benefit and use
of the public, including water, sewerage, waste disposal, utilities, and
transportation.
In addition, under the bill, when testing for PFAS, DNR may not collect samples
from lands not owned by the state without written permission from the landowner
to collect samples, to test those samples, and to publicly disclose the results of that
testing. DNR also may not publicly disclose such PFAS testing results unless it
notifies the landowner of the test results at least 72 hours before publicly disclosing
them. In addition, DNR may not take any enforcement action against a landowner
based on the results of any PFAS testing conducted on samples taken from lands not
owned by the state unless PFAS levels exceed any applicable limit under state or
federal law or another applicable state or federal law requires DNR to take
enforcement action. In addition, DNR must respond to requests from any person to
conduct PFAS testing on samples taken from the person's property if funds are
available to do so, if there is a reasonable belief that PFAS contamination may be
present on the property, and if existing information such as public water supply
testing data is not available.
The bill also requires DNR, in the 2023-25 fiscal biennium, to increase its PFAS
testing activities.
Fire fighting foam
The bill requires DNR to survey or resurvey local fire departments about their
use and possession of PFAS-containing fire fighting foam, send communications and
information, and contract with a third party to collect PFAS-containing firefighting
foam.
Well compensation grant program
Under current law, an individual owner or renter of a contaminated private
well, subject to eligibility requirements, may apply for a grant from DNR to cover a
portion of the costs to treat the water, reconstruct the well, construct a new well,
connect to a public water supply, or fill and seal the well. The bill provides that a
grant for costs to treat the water may be used to cover the cost of a filtration device
and up to two replacement filters.
Portable water treatment system pilot project
The bill requires DNR to contract with an entity to conduct a pilot project in
which PFAS-contaminated surface water is partially or fully diverted to a portable
treatment system and treated water is returned to the surface water. DNR and the
entity must conduct tests to evaluate the success of the pilot project.
Remedial action at sites contaminates by PFAS
The bill requires DNR to begin response and remedial actions at any
PFAS-contaminated site where a responsible party has not been identified or the
responsible party is unable to pay for remediation.
Reduction of PFAS testing costs
The bill requires DNR and the Board of Regents of the University of Wisconsin
System to enter into a memorandum of understanding to ensure that the state
laboratory of hygiene reduces the costs of conducting testing for PFAS by at least 10
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percent within two years. The bill requires the state laboratory of hygiene to prepare
a report on its efforts to reduce the cost of PFAS testing and the timeline for receiving
testing results.
PFAS studies and reporting
The bill requires DNR and the Board of Regents of the University of Wisconsin
System to enter into a memorandum of understanding to 1) study and analyze the
cost, feasibility, and effectiveness of different methods of treating PFAS before they
are released into a water system or water body; 2) conduct a cost-benefit analysis of
different options for disposing of biosolids or sludge that contains or may contain
PFAS; 3) study and analyze the cost, feasibility, and effectiveness of different
destruction and disposal methods for PFAS; 4) study and analyze the migration of
PFAS into the bay of Green Bay; and 5) create a comprehensive, interactive map
showing all available PFAS testing data and, for each data point, whether it exceeds
any applicable state or federal standard for PFAS. Such data may not contain any
personally identifiable information unless the entity to which the data applies is
required to test and disclose its results under state or federal law.
DNR reporting requirements
The bill requires DNR to report to the legislature once every six months for a
period of three-years to provide a detailed description of DNR's expenditures under
the bill and a detailed description of DNR's progress in implementing the provisions
of the bill.
Clean water fund program and safe drinking water loan program
Under current law, the Department of Administration and DNR administer the
Safe Drinking Water Loan Program (SDWLP), which provides financial assistance
to municipalities, and to the private owners of community water systems that serve
municipalities, for projects that will help the municipalities comply with federal
drinking water standards. DNR establishes a funding priority list for SDWLP
projects, and DOA allocates funding for those projects. Also under current law, DNR
administers the Clean Water Fund Program (CWFP), which provides financial
assistance to municipalities for projects to control water pollution, such as sewage
treatment plants.
Under the bill, if DNR, when ranking SDWLP or CWFP projects or determining
an applicant's eligibility for assistance under those programs, considers whether an
applicant that intends to extend service outside of municipal boundaries because of
water contamination is “small” or “disadvantaged,” DNR must determine the
applicant to be small or disadvantaged if the area receiving the extended service
would normally be determined to be small or disadvantaged, regardless of whether
the existing service area would normally be determined to be small or
disadvantaged.
Public water utility projects
Under current law, a public utility may not engage in certain construction,
expansion, or other projects unless the Public Service Commission grants a
certificate of authority (CA) for the proposed project. Under the bill, if a water public
utility or a combined water and sewer public utility (water utility) fails to obtain a
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CA before commencing a project for which one is required, PSC may not investigate,
impose a penalty against, or bring an action to enjoin the water utility if 1) the water
utility undertook the project in response to a public health concern caused by PFAS
or an emerging contaminant, the presence of which was unknown to the water utility
until shortly before it commenced the project, and, if there is an applicable state or
federal standard for the contaminant, the contaminant exceeded or was close to
exceeding that standard; 2) the water utility submits the appropriate application
and supporting documentation to PSC no later than six months after commencing
the project; and 3) the total cost of the project is not greater than $2,000,000 or 50
percent of the utility's operating expenses for the previous year, whichever is less.
Under current law, a water utility may not change the rates that it charges to
customers without first applying to PSC for approval of the change. This bill requires
PSC to authorize a separate rate class of customers if requested by a water utility
under certain circumstances. Specifically, the bill requires this authorization with
respect to those customers to whom water or combined water and sewer utility
service was extended outside of the water utility's service territory in response to a
public health concern caused by contamination. Under the bill, PSC must authorize
higher rates for this class of customers for the purpose of financing the extension of
service. The bill requires PSC to allow the class to remain in effect for 10 years or
for the duration of any financing authorized to fund the extension of service,
whichever is longer.
Limitations on annexation and use of revenue for PFAS source reduction
measures
Under the bill, no city or village may annex territory for which water or
sewerage services have been extended beyond the city's or village's municipal
boundaries due to an immediate public health concern from an emerging
contaminant for at least three years following the completion of the extension of
services unless two-thirds of the qualified electors residing in the affected territory
vote to approve the annexation.
The bill also authorizes a municipal public utility or metropolitan sewerage
district to use revenues from its water or sewerage services for up to half of the cost
of pretreatment or other PFAS source reduction measures for an interconnected
customer or other regular customer if the costs incurred are less than the costs of the
upgrades otherwise required at the endpoint treatment facility and if the costs are
approved by the governing body of the municipality or the metropolitan sewerage
district.
The people of the state of Wisconsin, represented in senate and assembly, do
enact as follows:
1 SECTION 1. 66.0224 of the statutes is created to read:
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1 66.0224 Annexation of territory for which water or wastewater service
2 is extended. Notwithstanding ss. 66.0217, 66.0219, 66.0221, and 66.0223, no
3 territory for which water or sewerage services have been extended beyond a city's or
4 village's municipal boundaries due to an immediate public health concern from an
5 emerging contaminant may be annexed by the city or village that extended services
6 for a period of 3 years following the completion of the extension project unless a
7 number of qualified electors residing in the territory for which services have been
8 extended and subject to the proposed annexation equal to at least two-thirds of the
9 votes cast for governor in the territory at the last gubernatorial election vote to
10 approve the annexation.
11 SECTION 2. 66.0811 (4) of the statutes is created to read:
12 66.0811 (4) Notwithstanding subs. (2) and (3) and s. 66.0901 (11), a municipal
13 public utility or a metropolitan sewerage district created under ss. 200.21 to 200.65
14 may use funds derived from its water or sewerage services for up to half of the cost
15 of pretreatment or other perfluoroalkyl and polyfluoroalkyl substances source
16 reduction measures for an interconnected customer or other regular customer if the
17 costs incurred are less than the costs of the upgrades otherwise required at the
18 endpoint treatment facility and if the costs are approved by the governing body of the
19 municipality or the metropolitan sewerage district.
20 SECTION 3. 196.03 (7) of the statutes is created to read:
21 196.03 (7) At the request of a water public utility or combined water and sewer
22 public utility, the commission shall authorize a separate rate class of customers for
23 those customers to whom water or combined water and sewer utility service was
24 extended outside of the public utility's service territory in response to a public health
25 concern caused by contamination. The commission shall authorize higher rates for
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1 a class of customers authorized under this subsection than for other classes for the
2 purpose of financing the extension of service to these customers. The commission
3 shall allow the class of customers to remain in effect for 10 years or for the duration
4