It's Complicated: The Evolving Regulation Of "Forever Chemicals" In Wisconsin

• Published date: 20 April 2022
• Subject Matter: Environment, Energy and Natural Resources, Environmental Law, Chemicals
• Law Firm: Foley & Lardner
• Author: Ms Linda Benfield, Peter A. Tomasi, Amanda K. Beggs and Nicholas R. Johnson

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...