Wisconsin Judge Rules that the WDNR Lacks Authority to Regulate PFAS

On April 12, 2022, a Wisconsin decide dominated within the case of Wisconsin Producers & Commerce, Inc. and Leather-based Wealthy, Inc. v. WDNR, (Waukesha County Case 2021CV000342) that the WDNR lacks the authority to manage PFAS chemical substances as a result of the Wisconsin Legislature has not established regulatory requirements for them. In keeping with the lawsuit, Leather-based Wealthy, Inc. entered right into a voluntary WDNR environmental cleanup program in 2019, and the next 12 months WDNR indicated that the companies enrolled in this system had been required to check for rising contaminants, together with PFAS. The plaintiffs within the case argued that as a result of the WDNR had created a listing of rising contaminants with none legislative oversight or alternative for public remark, and had not adopted regulatory requirements by administrative rulemaking, the WDNR lacked the authority to require such testing. The decide’s ruling would require the WDNR to attend till legislators have established requirements for PFAS by adoption of regulatory limits in state regulation or by administrative guidelines. It’s estimated that the adoption of requirements for PFAS might require 1-2 years. An lawyer for the WDNR indicated that the WDNR plans to enchantment the choice and file a movement to position the decide’s order on maintain.

The WDNR has traditionally taken the place that the company has authority beneath Wisconsin’s “Hazardous Substance Spill Act” (“Spill Act” – Wis. Stats. 292.11) to manage PFAS even within the absence of established requirements, because the Spill Act provides the WDNR broad authority to require testing and remediation of such chemical substances. In late February, the WDNR’s Pure Sources Board (NRB)—the entity that units coverage for the WDNR—took steps towards the adoption of statewide requirements for 2 of the commonest PFAS compounds, which included an approval to undertake a consuming water normal of 70 elements per trillion (ppt) for 2 of the commonest PFAS compounds; perfluorooctanoic acid (PFOA) and polyfluorooctane sulfonate (PFOS).

PFAS is an acronym for per- and polyfluorolalkyl substances, that are chemical substances that had been broadly used from the Sixties to the early 2000s within the manufacture of a wide range of shopper merchandise, resembling stain resistant carpets, non-stick cookware (e.g., Teflon), firefighting foam, meals packaging (e.g., microwave popcorn baggage/pizza packing containers), water-proof clothes (e.g., pre-2000 GoreTex), water-proof repellent (e.g., Scotchgard) and dental floss. Whereas the usage of PFAS compounds has largely been phased out within the U.S., these compounds are nonetheless used within the manufacturing of many merchandise worldwide. These substances, often known as “ceaselessly chemical substances,” have acquired appreciable consideration by federal and state environmental regulatory companies due to their resistance to chemical breakdown because of the chemical bond between carbon and fluorine atoms within the PFAS compounds, which is without doubt one of the strongest in nature. Due to this, people can nonetheless be uncovered to PFAS lengthy after the chemical substances had been launched into the atmosphere.

The WDNR has recognized roughly 90 websites all through Wisconsin with PFAS contamination, together with municipalities resembling Madison, Marinette, Peshtigo and Wausau with PFAS-contaminated groundwater.