It’s Complicated: The Evolution of Forever Chemicals Regulation in Wisconsin | Newsletters | Legal news: Environment

Over the past several years, the Wisconsin Department of Natural Resources (“WDNR”) has engaged in a multi-media effort to regulate the class of chemicals commonly referred to as “eternal chemicals” in state waters and soils. . These compounds, per- and poly-fluorinated alkylated substances, are also called “PFAS”.

The extent of the WDNR’s authority to regulate PFAS in ground, potable and surface waters and soils has recently been addressed by the Wisconsin Natural Resources Board (the “Board”) and two circuit court decisions. These recent events are particularly significant for stakeholders in Wisconsin, given that PFAS are not yet listed as “hazardous substances” under CERCLA (the federal “Superfund” law), and so states have taken the lead in matters of regulation. Companies with open remediation cases, as well as companies with wastewater discharges, should carefully evaluate their options to determine the effect of these decisions on their remediation and wastewater treatment programs.

The Wisconsin Natural Resources Board has only adopted a portion of the proposed WDNR standards for PFAS

In September 2019, under the direction of Governor Tony Evers, WDNR began the process of developing regulatory standards for PFOS and PFOA – two individual types of PFAS – in drinking water, surface water and water underground. In late February 2022, the agency presented its proposed standards to the Board, which the Board did not adopt en bloc, as shown in the table below.

Drinking water standards. The Board has amended the proposed drinking water standards to reflect current US EPA recommendations. Under Wisconsin’s regulatory procedure, proposed regulations must now receive approval from the governor and approval from legislative committees before taking effect.

Surface Water Standards. The Council adopted the surface water standards proposed by the WDNR. As noted above, these proposed standards must now receive approval from the Governor and legislative committees.

Groundwater standards. In a split vote, the Council did not adopt the proposed groundwater standards, with several members expressing concerns about the cost to industry of complying with the proposed regulations. WDNR’s authority to propose groundwater regulations expired in March 2022, and therefore, if WDNR decides to restart the regulatory process for groundwater standards, the agency will need to seek approval from a new scope statement, which would give the agency 30 months to complete the process again.

Summary of the Wisconsin Natural Resources Council

February 2022 action on proposed PFAS standards

Standards

Proposed WDNR

Adopted

Drink water

20 parts per trillion (ppt) for PFOA and PFOS individually and combined

70 ppt for PFOA and PFOS, individually and combined

Surface waters

8 ppt for PFOS

20 ppt for PFOA in surface water used as a drinking source

95 ppt for PFOA in all other surface waters

8 ppt for PFOS

20 ppt for PFOA in surface water used as a drinking source

95 ppt for PFOA in all other surface waters

Underground waters

20 ppt for PFOA

20 ppt for PFOS

No standard adopted

Two recent cases require WDNR to promulgate rules before regulating PFAS in water and soil

A Waukesha Circuit Court has ruled that the WDNR does not have the authority to require investigation and correction of PFAS

On April 12, 2022, a Waukesha County Circuit Court judge ruled that the WDNR exceeded its legal authority when it instructed responsible parties to test for PFAS and address contamination before securing site closure. as part of state cleanup programs. In Wisconsin Manufacturers and Commerce v. WDNR, No. 21CV0342 (Waukesha County), the court granted summary judgment for plaintiffs Wisconsin Manufacturers and Commerce (“WMC”) and Leather Rich, Inc. (“Leather Rich”), finding that WDNR must use the process of regulations to establish PFAS as a “hazardous substance” under state law before requiring PFAS cleanup efforts. The WDNR had argued that it had broad authority under the state spill law (Wis. Stat. c. 292) to compel investigation and remediation of PFAS.

In this case, Leather Rich, an Oconomowoc-based company, had joined the WDNR’s Voluntary Liability Exemption (“VPLE”) site cleanup program. Leather Rich alleged that he spent several years investigating volatile organic compound impacts related to former on-site dry cleaning operations, including preparing several work plans, only for WDNR to disapprove of the proposed investigation. on the site on the grounds that it had not properly assessed the site for Impacts of PFASs. The basis for WDNR’s denial was an Interim Decision Policy, posted via the WDNR website on January 4, 2019, in which WDNR announced that it would not issue Certificates of Completion for any potential site contaminants that do not has not been studied but may be discovered in the future. – and PFAS in particular. WMC and Leather Rich argued that WDNR exceeded its legal authority under spill law by enacting this policy.

Following a verbal ruling from the bench on April 12, Circuit Judge Michael Bohren issued an order on April 16 granting summary judgment to WMC and Leather Rich. In his oral decision, Judge Bohren held that policy statements issued by WDNR regarding PFAS have the force of law, as they form the basis of policy decisions. The court also verbally ruled that WDNR failed to follow the rule-making process set out in the Wisconsin Supreme Court decision. Citizens for Sensible Zoning, Inc. v. Department of Natural Resources, 90 Wis.2d 804 (Wis. 1979), and suggested that the agency’s failure to do so involved issues of due process and fair notice.

In its written order, the court held that (1) WDNR’s policy of regulating emerging contaminants (including PFAS) as hazardous substances under the Spills Act was unlawfully enacted and therefore unenforceable ; (2) WDNR may not apply any numerical standards for emerging contaminants (including PFAS) unless such standards are promulgated through the regulatory administrative process; and (3) WDNR’s VPLE Preliminary Decision Policy was unlawfully adopted and is therefore unenforceable. The court temporarily stayed the implementation of the order to allow the parties to notify WDNR’s next motion to stay the order pending appeal; this motion will be heard on June 6, 2022. The WDNR is expected to file an appeal.

A Jefferson County judge limited WDNR’s power to require PFAS sewage sampling

On January 24, 2022, a Jefferson County Circuit Court Judge ruled that while the WDNR can enter a facility to sample wastewater for PFAS, it cannot require discharge permit holders Wastewater companies sample for PFAS and cannot initiate enforcement actions based on the results. , unless and until the agency establishes binding PFAS standards.

In Wisconsin Manufacturers and Commerce v WDNR, 21-CV-0111, WMC challenged WDNR’s letters requesting that facilities holding individual WPDES discharge permits provide access to WDNR to test facility wastewater for PFAS. The WDNR intended to use the data to support the economic impact analysis required as part of the regulatory process for the proposed water standards for PFAS, but the WDNR took the position that the results of Sampling of obtained PFAS could be used as a basis for determining which facilities are releasing PFAS at levels potentially harmful to human health, allowing WDNR to take enforcement action under Wisconsin law.

The court ruled that the sampling program is authorized by state law, but that the WDNR cannot require companies to perform the tests. Instead, the WDNR could access the properties and perform the sampling. The court then ruled that the WDNR could not use PFAS sampling results for enforcement purposes until the agency established standards for PFAS releases through the development of rules. The court also ruled that WDNR’s PFAS sampling records obtained through the sampling program are public records and therefore subject to open record requests. The parties have filed cross-appeals, which are currently pending.

Harry L. Blanchard