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PFAS: Key takeaways from WMC’s suit against DNR

January 31, 2022

PFAS: Key takeaways from WMC’s suit against DNR

January 31, 2022

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On Jan. 24, 2022, Jefferson County Circuit Court Judge William Hue issued a written decision concerning a legal challenge from Wisconsin Manufacturers and Commerce (WMC) against the Wisconsin Department of Natural Resources (DNR) regarding the regulation of per- and polyfluoroalkyl substances (PFAS). At issue is DNR’s authority to regulate PFAS under Wis. Stat. ch. 283 through the issuance of Wisconsin Pollution Discharge Elimination System (WPDES) permits implementing provisions of the Clean Water Act.

The following are six key takeaways from Judge Hue’s decision:

  1. DNR is prohibited from engaging in or enforcing any effluent sampling of PFAS as a requirement of information gathering and preparing an economic impact analysis for the Wis. Stat. ch. 227 administrative rulemaking process.
  2. The previous temporary restraining order and subsequent bench order preventing DNR from disseminating PFAS effluent sampling results is not ripe for adjudication due to the lack of a public records request at issue, therefore the request for permanent injunction prohibiting DNR from making such sampling results public is denied.
  3. DNR’s authority under Wis. Stat. § 283.55(2)(a) to sample effluent at WDPES permitted facilities is limited to conditions of the permit and DNR may only require sampling of specific toxic pollutants contemplated in the permit. Stated differently, because PFAS is not a pollutant identified in the permit, DNR may not require sampling for PFAS under this authority until it is a contemplated constituent of a discharge.
  4. DNR has broad authority under Wis. Stat. § 283.55(1)(e) to obtain information, including through sampling effluent at WPDES-permitted facilities, to monitor any specific WPDES permit holder compliance, to monitor all regulated pollutants, and to identify the type and quantity of any pollutants discharged from any facility; however, notwithstanding such authority, DNR is not authorized to “prohibit or set standards for any pollutant” until undergoing rulemaking.
  5. DNR’s authority under Wis. Admin. Code § NR 102.04(1)(d) to compel WPDES-permitted facilities to allow entry and access for the purposes of sampling effluent is not authorized until DNR first promulgates a rule designating that PFAS compounds are toxic substances.
  6. Relying on Wis. Stat. § 227.10(2), DNR’s authority to implement and enforce provisions of the Clean Water Act through administration of its WPDES program concerning PFAS compounds is not enforceable until DNR first promulgates a rule setting effluent standards for PFAS compounds.

Water quality regulators at DNR and WPDES permit holders are left with many practical questions arising from this mixed decision. As part of its effort to regulate PFAS, DNR initiated rulemaking at the recommendation of the Wisconsin Department of Health Services to promulgate effluent standards for two PFAS analytes: PFOA and PFOS. This specific proposed rule is currently scheduled for consideration for approval by the Natural Resources Board (NRB) in its upcoming meeting scheduled for Feb. 22 and 23, 2022.

The decision from the Jefferson County Circuit Court largely represents an interpretation of the authority of a Wisconsin administrative agency to apply and enforce standards that have not been promulgated under statutory authority that was adopted during the former gubernatorial administration. In 2021, the Wisconsin Supreme Court addressed similar issues in Clean Wisconsin v. DNR I concerning concentrated animal feeding operations (CAFOs) impact on water quality and Clean Wisconsin v. DNR II concerning the consideration of surrounding water quality in high capacity well permits.

This decision is part of a series of potential ongoing clashes between the regulated community and industrial interests, on the one hand, and DNR, on the other, regarding PFAS. A decision hearing regarding WMC’s challenge to DNR authority to regulate PFAS and other chemical substances as a hazardous substance is currently scheduled for April 7, 2022. This may represent a continuing flashpoint for these same parties in the months and years ahead.

For more information on this topic, or to learn how Godfrey & Kahn can help, contact a member of our Environmental Strategies Practice Group.

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