It’s Complicated: The Evolving Regulation of “Forever Chemicals” in Wisconsin

For 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 “forever chemicals” in waters and soils in the state. These compounds, per- and poly-fluorinated alkyl substances, are also known as “PFAS”. 

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

The Wisconsin Natural Resources Board Adopted Only a Portion of 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 groundwater. In late February 2022, the agency presented the Board with its proposed standards, which the Board did not adopt wholesale, as shown in the table below. 

Drinking Water Standards. The Board modified the proposed drinking water standards to mirror current U.S. EPA recommendations. Under Wisconsin’s rulemaking procedure, the proposed regulations must now receive the Governor’s approval and the approval of legislative committees before they are effective.

Surface Water Standards. The Board adopted the WDNR’s proposed surface water standards. As noted above, those proposed standards must now receive approval from the Governor and legislative committees.  

Groundwater Standards. In a split vote, the Board did not adopt the proposed groundwater standards, with several members expressing concerns over the cost to industry of compliance with the proposed regulations. The WDNR’s authority to propose regulations for groundwater expired in March 2022, and therefore if the WDNR determines to start the regulatory process again for groundwater standards, the agency will have to seek approval for a new Statement of Scope, which would give the agency 30 months to complete the process again.

Summary of Wisconsin Natural Resources Board

February 2022 Action on Proposed PFAS Standards

Two Recent Cases Require WDNR to Promulgate Rules before Regulating PFAS in Water and Soils

A Waukesha Circuit Court Ruled that the WDNR Does Not Have the Authority to Require Investigation and Remediation of PFAS

On April 12, 2022, a Waukesha County Circuit Court judge ruled that WDNR exceeded its statutory authority when it asked responsible parties to test for PFAS and address contamination before obtaining site closure under the state’s cleanup programs. In Wisconsin Manufacturers and Commerce v. WDNR, No. 21CV0342 (Waukesha County), the court granted summary judgment for the plaintiffs Wisconsin Manufacturers and Commerce (“WMC”) and Leather Rich, Inc. (“Leather Rich”), holding that WDNR must use the rulemaking process to establish PFAS as “hazardous substances” under state law before requiring PFAS cleanup efforts. The WDNR had argued that it had broad authority under the state’s Spills Law (Wis. Stat. ch. 292) to compel investigation and remediation of PFAS. 

In the case, Leather Rich, an Oconomowoc-based company, had entered into the WDNR’s Voluntary Party Liability Exemption (“VPLE”) site cleanup program. Leather Rich alleged that it had spent several years investigating volatile organic compound impacts related to former dry cleaning operations onsite, including the preparation of multiple workplans, only to have WDNR disapprove the proposed site investigation on the ground that it did not adequately assess the site for PFAS impacts. WDNR’s basis for the denial was an interim decision policy, issued via the WDNR’s website on January 4, 2019, in which the WDNR announced it would not issue Certificates of Completion for any potential site contaminants that were not investigated but could be discovered in the future – and PFAS in particular.  WMC and Leather Rich argued that WDNR exceeded its legal authority under the Spills Law in promulgating this policy.  

Following a verbal ruling from the bench on April 12, Circuit Judge Michael Bohren entered an Order on April 16 granting summary judgment to WMC and Leather Rich.  In his verbal ruling, Judge Bohren held that policy statements issued by WDNR about PFAS have the effect of law, because they form the basis for policy determinations. The court also ruled verbally that WDNR did not follow the rulemaking process set forth in the Wisconsin Supreme Court decision Citizens for Sensible Zoning, Inc. v. Dep’t of Natural Resources, 90 Wis.2d 804 (Wis. 1979), and suggested that the agency’s failure to do so implicated due process and fair notice concerns.

In his written Order, the court held that (1) WDNR’s policy of regulating emerging contaminants (including PFAS) as hazardous substances under the Spills Law was adopted unlawfully and is therefore unenforceable; (2) WDNR cannot enforce any numeric standards for emerging contaminants (including PFAS) unless those standards are promulgated through the administrative rulemaking process; and (3) the WDNR’s VPLE interim decision policy was adopted unlawfully and is therefore unenforceable. The court temporarily stayed implementation of the Order to permit the parties to brief the WDNR’s forthcoming motion to stay the Order pending appeal; that motion will be heard on June 6, 2022.  It is expected the WDNR will file an appeal.  

A Jefferson County Judge Limited the WDNR’s Authority to Require PFAS Wastewater Sampling

On January 24, 2022, a Jefferson County Circuit Court judge ruled that although the WDNR can enter a facility to sample wastewater for PFAS, it cannot require wastewater discharge permit holders to conduct sampling for PFAS, and cannot bring an enforcement action 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 letters requesting that facilities holding individual WPDES discharge permits provide WDNR access to test the facilities’ wastewater for PFAS. The WDNR intended to use the data to support the economic impact analysis required under the rulemaking process for proposed PFAS water standards, but WDNR took the position that the PFAS sampling results obtained could be used as a basis to determine which facilities are discharging PFAS at levels potentially harmful to human health, thereby permitting 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 request companies to perform the testing. Instead, the WDNR could access the properties and perform the sampling. The court went on to rule that WDNR cannot use the PFAS sampling results for enforcement purposes until the agency establishes standards for PFAS discharges through rulemaking. The court also ruled that the WDNR’s PFAS sampling records obtained as part of the sampling program are public records and thus subject to open records requests.  The parties have filed cross-appeals, which are presently pending.