By Leah Ziemba, Todd Palmer and Taylor Fritsch, Michael Best & Friedrich LLP
In a closely watched case, the Jefferson County Circuit Court concluded that the Wisconsin Department of Natural Resources (WDNR) has limited authority related to sampling permitted wastewater discharges for PFAS compounds.
In the court’s late January decision, WDNR achieved a narrow victory on the issue of sampling authority. The court held that only one Wisconsin statutory provision, Wis. Stat. § 283.55(1)(e), provides the agency with authority related to the sampling of WPDES-permitted wastewater discharges for PFAS.
The court also concluded that WDNR may not enforce PFAS effluent standards without first engaging in administrative rulemaking. That state rulemaking process is underway.
The court specifically rejected WDNR efforts to regulate PFAS effluent discharges under its “Narrative Toxic Standard,” holding that WDNR “must promulgate their interpretation that PFAS compounds (not currently subject to toxic substances and effluent standards by rule) are toxic substances (regardless of any “consensus” that they, in fact, are toxic substances) as a rule and follow the procedure for so doing as required by Wisconsin law prior to relying on authorization to sample under the ‘Narrative Toxic Standard.’”
Wisconsin Manufacturers and Commerce brought the case after WDNR announced it would conduct involuntary sampling of the effluent from select WPDES-permitted facilities for PFAS compounds. WDNR’s initial rationale for sampling was to gather data in support of the economic impact analysis of rulemaking to create surface water quality standards for PFAS. The court held that the economic impact analysis statute does not provide WDNR authority to conduct involuntary sampling. However, the court acknowledged that a program of sampling could be independently authorized by law, and the data generated through such independently authorized sampling could be used in the development of an economic impact analysis.
The court’s issuance of a final decision dissolves a temporary injunction that had precluded the release of non-anonymized sampling results obtained by WDNR from sampling efforts.
The case is Wisconsin Manufacturers and Commerce, Inc. v. Wisconsin Department of Natural Resources, et al., Case No. 21-CV-111 (Jefferson County Circuit Court).
A separate legal proceeding remains pending in Waukesha Circuit Court challenging WDNR’s authority to regulate PFAS as a hazardous substance under the state’s Spills Law and associated Wis. Admin. Code NR 700 regulations.
Proposed Rule for PFAS Surface Water Quality Standards
As previously referenced, the state’s rulemaking process related to surface water quality standards for PFAS is underway (WY-23-19). A proposed rule was released in July 2021, along with a draft economic impact analysis (EIA). A revised rule, along with a final EIA, was released in September 2021.
The final proposed rule would set surface water quality standards for two types of PFAS, PFOS and PFOA, as well as revise WPDES permitting regulations to implement the new water quality standards.
As a general matter, the proposed framework includes an initial 24-month sampling period. If WDNR determines that levels of PFOS or PFOA in a permitted discharge may cause or contribute to an exceedance of the PFOS or PFOA public health significance level, then the development and implementation of a PFAS Minimization Plan and continued sampling is required. If a PFAS Minimization Plan is required, the permittee is allowed up to 84 months to “investigate sources, make operational changes, install BMPs, clean equipment, and implement all identified source reduction actions.”
If, after implementation of a PFAS Minimization Plan, WDNR determines levels of PFOS and/or PFOA are of a level that exceeds or has a reasonable potential to exceed a standard, then WDNR may impose a compliance schedule.
The next step in the rulemaking process is for the Natural Resources Board (NRB) to consider the proposed final rule. If adopted by the NRB, the rule would go to the Governor for approval, followed by legislative review. WDNR estimates the rule would become effective in mid- to late- 2022. Given the legislative calendar, we think that is optimistic. Further, the rule will almost certainly be subject to legal challenge(s) which could delay the imposition of these surface water quality standards.