Judge: DNR can sample for 'forever chemicals' but can't take action against polluters until standards are passed

·4 min read

A Jefferson County judge has ruled the Department of Natural Resources can test wastewater for "forever chemicals" but can't bring legal action against those causing the pollution until the Legislature establishes water quality standards for the compounds.

Jefferson County Judge William Hue said in a written decision Monday that under the Clean Water Act, the agency can continue to sample for PFAS for informational purposes, but enforcement can't be taken. He also ruled that any sampling results should be considered public record, and therefore subject to records requests.

The 45-page decision partially sides with Wisconsin Manufacturers & Commerce, which sought to halt the agency's sampling program last year with the lawsuit.

WMC in April 2021 filed for a restraining order to temporarily halt the Department of Natural Resources PFAS sampling program because the agency did not have the authority to implement and enforce sampling for compounds that do not yet have standards under state law.

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The court halted the sampling program for about three days in April but allowed the DNR to continue as long as results including the names of businesses were not released to the public.

In the original filing, WMC said the standards the DNR has been using for PFAS may never get legislative approval because of the cost of adherence. The lobbying group estimates the cost of removing PFAS from water leaving manufacturing facilities could be in the tens of millions of dollars.

WMC called the testing operation is a "fishing expedition" that will harm any business found to have PFAS in the water leaving its facility.

In the DNR's fiscal estimate for surface water standards, some industrial facilities could be required to pay millions of dollars to conduct sampling, come up with PFAS modernization plans and install treatment systems to clear out PFAS before water is discharged into a water body or to a wastewater treatment facility. But the sampling could save up to $100 million a year in health costs.

Spokespersons for both the department and WMC said they were still reviewing the ruling and could not yet comment.

More: 'We must simply follow the science': Wisconsinites urge adoption of 'forever chemical' regulations proposed by DNR

WMC is also involved in a second lawsuit against the DNR in regard to PFAS clean-up, alongside an Oconomowoc leather-cleaning business.

Filed in February, WMC claimed in the suit that the agency was undermining state law with the way it runs its industrial clean-up program, stating the DNR can't use standards that haven't gone through the formal rule-making process, including approval by the Legislature.

Environmental groups are concerned the lawsuit could impact Wisconsin's "Spills Law," which the groups say is key to protecting the waters of the state from all kinds of pollutants, including lead and nitrates.

A decision in that case is expected in April.

DNR moving to set standards for PFAS

PFAS are a family of more than 5,000 man-made chemicals used for their water- and stain-resistant qualities in products like clothing and carpet, nonstick cookware and good packaging. The compounds are also found in firefighting foam used on military bases and airports, as well as on industrial fires. The compounds are persistent, remaining both in the environment and human body over long periods of time.

The substances have been linked to types of kidney and testicular cancers, lower birth weights in infants, harm to immune and reproductive systems and altered hormone regulation and thyroid hormones.

More: What are PFAS? Here's what you need to know about the emerging contaminant group known as 'forever chemicals'

The compounds have been found in dozens of locations around Wisconsin, including Madison, Milwaukee, Eau Claire, Rhinelander, La Crosse, Peshtigo and Marinette.

As more localities discover PFAS in their water or soil, the DNR has moved to create formal standards for the chemicals and has been met with pushback from industry groups. The Natural Resources Board, which serves as the policy-setting arm for the DNR, will vote on PFAS standards for drinking and surface water at its meeting in February.

The proposed standards are 20 parts per trillion for both PFOA and PFOS — two of the most well-researched PFAS — in drinking water and 8 parts per trillion for PFOS and 20 parts per trillion for PFOA in surface waters that classify as public water supplies.

If the standards pass, they'll be sent to the Republican-led Legislature, which has in the past refused to take up legislation to regulate the compounds and has stripped key language from a rule sent over in 2020 from the Natural Resources Board.

Laura Schulte can be reached at leschulte@jrn.com and on Twitter at @SchulteLaura.

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This article originally appeared on Milwaukee Journal Sentinel: DNR can sample for 'forever chemicals' but can't take action against polluters

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