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It’s complicated: The Evolving Regulation of “Forever Chemicals” in Wisconsin – Environment
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It’s complicated: The Evolving Regulation of “Forever Chemicals” in Wisconsin – Environment

The Wisconsin Department of Natural Resources has been serving the public for several years.
Resources (“WDNR”) engaged in a multimedia effort to
Regulate the class of chemicals often referred to as
“Forever chemicals” in the water and soils of the state.
These compounds, poly- and per-fluorinated alkyl substances are
Also known as “PFAS”.

The authority of WDNR for ground regulation of PFAS,
Drinking water, as well as surface waters and soils, has been made possible in recent years
addressed by the Wisconsin Natural Resources Board
“Board”) as well as two circuit court rulings. These are the most recent
Wisconsin stakeholders find these events particularly important.
Given that PFAS have not been yet listed as “hazardous”,
substances” under CERCLA (“the federal “Superfund”)
law), and states have taken the lead in regulation.
Companies with open cases of remediation as well as companies that have closed cases
You should carefully consider the options for wastewater discharges
Find out the impact of these rulings upon their remediation
Wastewater treatment programs

The Wisconsin Natural Resources Board Only Adopted a Portion
Proposed WDNR Standards For PFAS

Under the direction of Governor Tony Evers in September 2019,
WDNR began to develop regulatory standards for PFOS.
Drinking water can contain PFOA and PFOA, two types of PFAS.
Surface water and groundwater. The agency will be operational in February 2022.
The Board was presented with its proposed standards.
As shown in the table below, they did not adopt wholesale.

Standards for Drinking Water.
The Board modified the drinking water standards to reflect the new proposal.
Current U.S. EPA recommendations The Wisconsin rulemaking
procedure, the regulations must now be received by the
Approval of the Governor and approval by legislative committees
Before they are effective.

Surface Water Standards.
The Board approved the proposed surface water standards of WDNR.
As stated above, the standards must be approved.
From the Governor, and legislative committees.

Groundwater Standards. In a
Split vote: The Board did not adopt groundwater proposal
Standards, with many members expressing concern over the cost
The industry is required to comply with the regulations. The
The authority of WDNR to propose regulations for groundwater has expired
In March 2022 and, therefore, if the WDNR decides to begin the
Groundwater standards will be regulated again by the agency.
must seek approval for a Statement of Scope.
The agency should be allowed to finish the process over again within 30 months.

Summary of Wisconsin Natural
Resources Board

February 2022 – Action on Proposed PFAS Standards





20 parts per trillion (ppt).
PFOA and PFOS, both as a pair or together

70 ppt for PFOA as well as PFOS
Individually and together


8 ppt PFOS

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

95 ppt PFOA in all others
Surface waters

8 ppt PFOS

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

95 ppt PFOA in all others
Surface waters


20 ppt PFOA

20 ppt PFOS

No standards adopted

Two recent cases require WDNR to promulgate rules before
Regulating PFASs in Water and Soils

A Waukesha Circuit Court ruled that the WDNR does not have
The Authority to Require Investigation and Remediation

A Waukesha County Circuit Court Judge ruled April 12, 2022
When it asked, WDNR went beyond its statutory authority.
Responsible parties to test for PFAS, and to address contamination
Before obtaining site closure under the state’s cleanup
programs. In Wisconsin Manufacturers and Commerce v. WDNR,
No. 21CV0342 (Waukesha Co.), the court granted summary judgement
Wisconsin Manufacturers and Commerce are the plaintiffs
(“WMC”), and Leather Rich, Inc. (“Leather
Rich”), arguing that WDNR must use rulemaking to
State law makes PFAS “hazardous substances”
Before requiring PFAS cleanup efforts. The WDNR argued that it
Spills Law (Wis. Stat.) gave the state broad authority.
ch. 292) to compel investigation into and remediation of PFAS.

Leather Rich, a company based in Oconomowoc, was the defendant.
Participated in the WDNR’s Voluntary Party Insurance Exemption
Site cleanup program (“VPLE”) Leather Rich claimed that
It had spent many years studying volatile organic compounds.
Impacts of dry cleaning operations that were once located on-site, including
Multiple workplans being prepared only for WDNR to disapprove
The investigation of the proposed site was denied on the ground that it didn’t
It is important to properly assess the site for potential PFAS impacts. The basis of WDNR
The denial was an interim decision-policy, issued via
WDNR’s website, January 4, 2019, where the WDNR announced
It would not issue Certificates of Completion in any case.
Site contaminants that were not examined but could be
Future developments will be discovered, PFAS being one of them. WMC and
Leather Rich argued WDNR had exceeded its legal authority.
This policy was promulgated by the Spills Law

Circuit ruled in accordance with a verbal ruling by the bench on April 12.
Judge Michael Bohren granted summary permission on April 16.
WMC and Leather Rich are hereby convicted. Judge
Bohren stated that WDNR policy statements regarding PFAS were not consistent with the facts.
Because they are the basis of policy, the law has an effect
determinations. The court also ruled verbally, that WDNR was not
Follow the rules laid out in the Wisconsin Supreme
Court decision Citizens for Sensible Zoning, Inc.
Natural Resources
90 Wis.2d804 (Wis. 1979), and recommended
Failure of the agency was a violation on due process and
fair notice concerns.

In his written Order, he ruled (1) that (1) WDNR’s policy was valid
Regulation of emerging contaminants (including PFAS) as hazardous
The Spills Law, which covers substances, was illegally adopted and is now in effect.
Therefore, it is not enforceable. (2) WDNR cannot enforce any numeric.
Standards for emerging contaminants (including PFAS) are not required unless they are.
Administrative rulemaking is used to promulgate standards
process; and (3) The WDNR’s VPLE interim policy decision was
It was adopted illegally and is therefore unenforceable. The court
Temporarily suspended implementation of the Order to allow the
Parties to inform the WDNR of the upcoming motion for stay
Order pending appeal. This motion will be heard on June 6, 20,22.
It is likely that the WDNR will appeal.

A Jefferson County Judge rescinded the WDNR Authority
Require PFAS Wastewater Sampling

On January 24, 2022, a Jefferson County Circuit Court Judge
It was ruled that the WDNR can still enter a facility to take samples
It is not possible to use wastewater for PFAS without a wastewater discharge permit
Holders must conduct sampling for PFAS and cannot bring an
Enforcement action based upon the results, unless and except the
agency establishes binding PFAS standards.

In Wisconsin Manufacturers and Commerce v. WDNR
21-CV-0111: WMC challenged WDNR letters requesting facilities
Individual WPDES discharge permits allow WDNR access
Check the wastewater of the facilities for PFAS. The WDNR intended it.
Use the data for the economic impact analysis required below
The rulemaking process is underway for proposed PFAS water standards. However, WDNR is handling it.
They believed that the PFAS sampling results could be manipulated.
Used to determine which facilities discharge PFAS.
Allowable at levels potentially hazardous to human health
WDNR will enforce Wisconsin law.

The court ruled that sampling programs are authorized by the state
law, but the WDNR can’t ask companies to perform the task.
testing. Instead, the WDNR could access properties and perform testing.
The sampling. The court ruled that WDNR could not use the sampling.
Until the agency has received the results from PFAS sampling for enforcement purposes,
Establishes standards through rulemaking for PFAS discharges The
Court also ruled that the PFAS sampling records of WDNR were obtained
The sampling program is part of public records, and therefore subject to public scrutiny.
to make open records requests. The parties have filed
Cross-appeals are currently pending.

This article is meant to be a guide.
guide to the subject matter It is a good idea to seek specialist advice
Learn more about your particular circumstances.

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