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Comprehensive PFAS legislation introduced in Wisconsin

On Thursday, May 24, 2019, Wisconsin State Senators Dave Hansen (D-Green Bay) and Mark Miller (D-Monona) introduced legislation (LRB-2297/2) which, if enacted, could have significant impacts on the State of Wisconsin’s regulation of per- and polyfluoroalkyl substances, otherwise known as PFAS. By extension, the proposed legislation could significantly affect the regulated community, including municipalities/Local Government Units, publicly owned treatment works, parties holding air and wastewater discharge permits, and many others.

The proposed legislation includes the following features:

By statutory amendments:

  • Requires the Wisconsin Department of Natural Resources (WDNR) to determine, initially, if an emission standard is needed for protection of public health and welfare related to PFAS and, if such a determination is made, requires the WDNR to consider all PFAS to be air contaminants and to require reporting of any emissions of PFAS (i.e. a reporting level of zero pounds per year).
  • Requires WDNR, following a recommendation by the Department of Health for a Wisconsin Administrative Code NR 140 Enforcement Standard (ES) for PFAS, to use such number as the interim ES and as the interim Maximum Contaminant Level (or MCL) for public water systems and water suppliers, and to use a standard that is 20% of the ES as the Preventative Action Limit (or PAL).
  • Allows the WDNR to require persons who possess or control PFAS to provide proof of financial responsibility for remediation and long-term care to address potential remediation caused by PFAS contamination.
  • Allows for budgeting for (a) sampling and testing leachate and groundwater at landfills for PFAS, (b) creating a model to assist in identifying and prioritizing sites with “likely” PFAS contamination, (c) conducting a survey local and state emergency responders regarding the use of firefighting foam containing PFAS, (d) the administration and enforcement related to PFAS, and (e) investigating for PFAS and for providing alternate drinking water supply for persons if no responsible party is available.

As “Emergency Rules”:1

  • Requires the WDNR to establish and enforce acceptable levels and standards, performance standards, monitoring requirements and required response actions for any PFAS in drinking water, groundwater, surface water, air, solid waste, beds of navigable waters, and soil and sediment, if the department determines that the substances may be harmful to human health or the environment.
  • Requires WDNR to add PFAS to the list of groundwater contaminants under Wis. Stats. §160.05.
  • Requires WDNR to include PFAS in wastewater discharge toxic and pretreatment effluent standards under Wis. Stats. §283.21. 
  • Requires WDNR to characterize PFAS as a hazardous waste under Wis. Stats. §291.05.
  • Requires WDNR to establish criteria for certifying laboratories to test for PFAS and to certify laboratories that meet these criteria. 
  • These rules must cover, at a minimum, PFOA and PFOS, as well as PFHxS, PFNA, PFBS and PFHpA compounds.

These are just a few of the substantive requirements contained in this bill relating to PFAS. The Bill provides that the rules would remain in effect until the earlier of July 1, 2022, or until permanent rules take effect. 

The LRB document can be accessed here.


Significantly, the legislation provides that the WDNR is not required to provide evidence that promulgating a rule “as an emergency rule” (i) is necessary “for the preservation of public peace, health, safety, or welfare” and (ii) is not required to provide a finding of emergency for a rule promulgated under this subsection.

Copyright © 2020 Godfrey & Kahn S.C.National Law Review, Volume IX, Number 149

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About this Author

Arthur J Harrington environmental law attorney godfrey & Kahn Lawn Firm
Shareholder

Art is chair of the firm's Renewable Energy & Energy Efficiency Law Practice Group and a member of the Environmental & Energy Law Practice Group. He has a reputation for representing a diverse cross-section of clients including Fortune 500 business, municipal, land trust, tribal and state agency clients to accomplish their respective environmental and energy goals. This diverse client mix provides him with a unique perspective for achieving client goals in often complex environmental and energy engagements. Art is particularly proud of his role where he has utilized his diverse...

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Edward Witte Environmental lawyer Godfrey Kahn
Shareholder

Ned Witte is a shareholder in the Environmental Strategies Practice Group. He represents clients in the service and manufacturing industries as well as government bodies in a wide range of environmental matters across the United States, including Wisconsin.

In September of 2015, Ned Witte was named the 2016 Best Lawyers®Environmental Law “Lawyer of the Year” in Milwaukee. Attorneys honored as “Lawyers of the Year” have received particularly high ratings for their abilities, professionalism and integrity based on exhaustive peer-review surveys. Ned has been Peer Review Rated as AV® Preeminent™, the highest performance rating in Martindale-Hubbell’s peer review rating system. He has been included in the 2010-2018 editions of Chambers USA: America’s leading Lawyers for Business. He is listed in Best Lawyers (since 2006). In addition, Ned was also selected for inclusion in the Wisconsin Super Lawyers lists (2009-2012). Ned was honored by the Wisconsin Law Journal as Leader in the Law 2015.

Ned has extensive experience in environmental due diligence and liability allocation in real estate, financing and corporate transactions, defense of government- and private party-lead enforcement actions and, conversely, enforcement of environmental contractual rights against third parties, the development and redevelopment of environmentally sensitive and contaminated properties, including Brownfields, coordinating Superfund site response activities, including as chair of steering committees, siting and permitting of manufacturing facilities and renewable and traditional energy projects and financial reporting of environmental liabilities under Sarbanes Oxley and related SEC standards. 

Ned has particular experience in counseling clients, writing and presenting at seminars concerning the emerging contaminants Per-and Polyfluoroalkyl substances, or PFAS (including PFOA and PFOS.) Ned and Godfrey & Kahn represent clients with interests in three of the non-airport/military base PFAS sites in Wisconsin (as identified on Wisconsin's BRRTS database.)

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