United States: PFAS: Wisconsin DNR And EPA Developments; Update On Spills Law Litigation June 11, 2022

On June 7, 2022, Waukesha County Circuit Court Judge Bohren granted a motion brought by the Wisconsin Department of Justice on behalf of the Wisconsin Department of Natural Resources (DNR) to stay pending appeal. Therefore, the April 2022 ruling that would prevent DNR from regulating per- and polyfluoroalkyl substances (PFAS) as a hazardous substance under the Spills Law will not go into effect while the appeal is pending.

This is a dispute concerning a legal challenge from an Oconomowoc-based dry-cleaner, Leather Rich, Inc. (Leather Rich) and Wisconsin Manufacturers and Commerce (WMC) against the Wisconsin Department of Natural Resources (DNR) and whether or not DNR has authority to regulate certain PFAS under applicable Wisconsin statutes and rules concerning remedial action sites. Specifically, the main issue is whether certain PFAS meet the broad Wisconsin statutory definition for "hazardous substance" or if DNR must first promulgate a specific rule before applying the statutory definition and rules concerning investigation and cleanup of hazardous substances to PFAS.

In April, Judge Bohren sided with WMC in his decision, focusing on the limitations of agency authority in Wis. Stat. § 227.10(2m). If the appeal is not taken up by the Supreme Court of Wisconsin (SCOWIS), District II of the Wisconsin Court of Appeals will imminently take up this appeal. The appellate arguments may discuss and apply two 2021 SCOWIS tandem cases Clean Wisconsin v. DNR (I) and Clean Wisconsin v. DNR (II) that recently interpreted this provision of ch. 227 concluding "explicit" agency authority may be broad, not specific.

There is also a question whether aspects of this challenge to DNR authority and order will be moot when there are enforceable PFAS values in surface water criteria (wastewater permits) and drinking water. Further complicating matters is how Judge Bohren's order applies to an undefined group of "emerging contaminants," which include all PFAS chemicals. Given the use of undefined terms, many practitioners of environmental law are concerned with uncertainties about the limits of the order. One may argue that PFAS chemicals with enforceable limits that apply to every wastewater permit are no longer "emerging contaminants" given the explicit references to relevant authorities cross-referenced in the remedial action rule series Wis. Admin. Code chs. 700-799. In addition, if the remedial action administrative rules that have been effective since 1995 contemplate the cleanup of substances that do not have Wis. Admin. Code ch. 140 groundwater values, requiring additional rulemaking on PFAS may grind economic development of Brownfields to a halt.

The stay allows for entities to conduct investigation, cleanup and redevelopment of contaminated properties where PFAS are present in groundwater by utilizing Wis. Admin. Code § NR 722.09(2)(b)2. This applicable rule allows for entities to address PFAS in groundwater at remedial action sites using calculated site-specific values in order to meet the statutory obligation to restore the environment to the extent practicable and minimize harmful effects.

ENFORCEABLE PFAS VALUES IN WISCONSIN

The 36-step, 30-month Wisconsin Administrative Rule process has reached the end for the two most well-studied PFAS analytes: PFOA and PFOS. The Wisconsin Legislature allowed their passive review period on the proposed surface water and drinking water rules to expire without taking an action, allowing the rules to be published as soon as July 2022. Therefore, Wisconsin will soon have enforceable surface water criteria and drinking water values for the two PFAS chemicals. These regulations will impact entities operating public water systems, wastewater systems, businesses discharging PFAS to wastewater treatment plants, and industries operating near sources of municipal drinking water wells.

As early as July 2022, entities that hold Wisconsin Pollutant Discharge Elimination System (WPDES) permits may address PFOA and PFOS through pollution minimization plans and source reduction measures. Entities holding pretreatment permits may be required to address PFAS to meet the WPDES criteria for PFOA and PFOS held by the wastewater treatment plants who receive their wastewater. The wastewater rule relies on source control by allowing entities to utilize a flexible compliance schedule to phase out and effectively eliminate PFAS in their waste stream.

For the drinking water rule, all public water systems will be required to evaluate PFOA and PFOS in their drinking water systems and address values that exceed the maximum contaminant levels (MCLs). DNR has indicated that guidance will be issued to require municipalities with over 50,000 residents to sample for PFOA and PFOS by fall 2022 with small public water systems to follow in a similar cadence. This limited sampling requirement by Wisconsin for 2 PFAS will begin prior to the United States Environmental Protection Agency (EPA) directive to all public water suppliers in the country to sample for 29 PFAS beginning as early as January 2023. Suffice it to say, the question of "where" PFAS may be found in Wisconsin will be answered within the next calendar year.

DNR has three active scope statements concerning additional PFAS, including hexafluoropropylene oxide dimer acid (HFPO-DA) and its ammonium salt, known as GenX chemicals, and perfluorobutanesulfonic acid (PFBS), in drinking water, groundwater and surface water. DNR is tasked with promulgating these three rules for the 12 additional PFAS by June 2024.

EPA ISSUES EXTREMELY LOW HEALTH ADVISORY LEVELS (HAL) FOR PFAS CHEMICALS

On June 15, 2022, EPA updated their lifetime health advisories for PFOA and PFOS and issued final health advisories for GenX chemicals and PFBS. The PFOA and PFOS updates are the first recommended changes to these advisories since 2016. The changes are significant decreases from the 2016 value of 70 parts per trillion (ppt) HAL for PFOA and PFOS:

Interim updated Health Advisory for PFOA = 4 parts per quadrillion (ppq) or 0.004 ppt
Interim updated Health Advisory for PFOS = 20 ppq or 0.02 ppt
Final Health Advisory for GenX = 10 ppt
Final Health Advisory for PFBS = 2,000 ppt

Yes, that is 4 parts per 1,000,000,000,000,000 parts or is 4 parts per quadrillion for PFOA. The EPA has concluded that lifetime exposure to PFOA and PFOS is an even greater health risk than previously understood. The first health advisories for the two additional PFAS chemicals, GenX and PFBS, are significant, as these replaced the active ingredients for Teflon and Scotchgard in the 2000s.

These EPA advisory levels are not enforceable and are not tied to the DNR drinking water values. However, the tasks of the regulatory agencies are similar, as the advisory levels are based on EPA toxicologists aggregating and compiling the most recent human health studies concerning these chemicals. Studies linking exposure potential to probable causes of human health effects have only recently been evaluated and understood. New studies conducted from 2016 to present suggest very low levels of these chemicals are safe for human consumption. Wisconsin DNR MCL for PFOA is based on older available studies and is 17,500 times higher than the EPA health advisory level.

These EPA advisory levels are not enforceable and are not tied to the DNR drinking water values. However, the tasks of the regulatory agencies are similar, as the advisory levels are based on EPA toxicologists aggregating and compiling the most recent human health studies concerning these chemicals. The health advisories provide technical information on chemical contaminants that can cause human health effects and are known or anticipated to occur in drinking water. A majority of the human health studies concerning PFAS have occurred in recent years. This EPA update shines a light on the recent action of DNR's NRB members unilaterally raising the drinking water MCL for PFOA and PFOS to 70 ppt based on outdated 2016 EPA recommended values. The NRB-passed MCL for PFOA is 17,500 times higher than the EPA health advisory level.

There are significant public health messaging challenges with EPA's 4 ppq health advisory level contrasting with Wisconsin Department of Health Services recommended drinking water values of 20 ppt and the enforceable drinking water MCL of 70 ppt.

EPA CERCLA HAZARDOUS SUBSTANCE DESIGNATION IS NEXT

According to its PFAS Strategic Roadmap, the next significant EPA action addressing PFAS is the introduction of a draft rule designating PFOA and PFOS as CERCLA hazardous substances. EPA also notes simultaneous consideration of additional PFAS to designate as CERCLA hazardous substances. Given the cadence of EPA's actions for PFOA and PFOS and recent issuance of final health advisories, many practitioners anticipate EPA proposing to also designate GenX and PFBS as CERCLA hazardous substances.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.