In just over a month, the state’s largest business lobby has filed another lawsuit against the Wisconsin Department of Natural Resources over so-called “forever chemicals” known as PFAS — this time for conducting PFAS sampling in wastewater.
Wisconsin Manufacturers and Commerce (WMC) filed a complaint on Monday in Jefferson County Circuit Court against the DNR, claiming the agency is unlawfully seeking to sample wastewater for PFAS that’s released from industrial and municipal facilities. The business group argues the DNR lacks explicit authority to conduct such sampling among facilities that operate under wastewater discharge permits.
WMC wants to prevent the DNR from collecting samples and releasing the data to the public. Jefferson County Judge William Hue granted a temporary restraining order on Monday to bar the agency from sampling for PFAS.
In a statement, DNR spokesperson Sarah Hoye said the agency has been conducting sampling among facilities that hold wastewater discharge permits to gather information as the DNR develops standards for PFAS in surface water. The DNR launched the rulemaking process last year after the Natural Resources Board approved creating standards for PFOA and PFOS in drinking water, surface water and groundwater.
Hoye said the agency looks forward to providing more information to the court.
“Until then, we respect and will follow the court’s order,” said Hoye.
Hearings in the matter are set for Thursday and again on April 12.
The complaint states the DNR is sampling wastewater for more than 30 PFAS chemicals as the agency seeks to gauge the economic impact of creating standards for the chemicals in drinking water, surface water and groundwater.
“(F)acilities who are sampled risk being publicly stigmatized as polluters, despite the fact that the PFAS compounds being sampled for are not regulated under state law, and the rulemaking that Defendants are engaged in to regulate some of those compounds may not even ultimately result in regulations being adopted,” the complaint reads. “Further, Defendants are not even attempting to regulate the overwhelming majority of compounds they are sampling for.”
Perfluoroalkyl and polyfluoroalkyl substances, commonly called PFAS, are manmade chemicals found in firefighting foam and everyday products. They don’t break down easily in the environment, and they’ve been linked to health problems, including some cancers, thyroid disease and reproductive issues. PFAS contamination has been identified at more than 50 sites statewide, including in Marinette, La Crosse, Superior and Madison.
The lawsuit states the DNR contends it has authority to conduct PFAS sampling of wastewater under state law and rules that govern wastewater discharge permits. But, WMC argues that any authority the agency may have to sample for PFAS is only implied and not explicitly spelled out as required under state law.
The group has been fighting efforts by state regulators to identify where PFAS contamination exists in the absence of state standards. WMC sued the DNR in February because they claim regulators are unlawfully asking businesses to test for PFAS as a hazardous substance under state environmental cleanup programs.
In 2019, the DNR asked 125 wastewater treatment plants to voluntarily conduct sampling for PFAS chemicals, but the vast majority declined to test their wastewater for PFAS. The Municipal Environmental Group, League of Wisconsin Municipalities and Wisconsin Rural Water Association have advised their members not to test for the chemicals, pointing to the lack of state standards.
Environmental groups like the Sierra Club have argued that the lack of data on PFAS prevents regulators from understanding the scope of the problem, putting public health at risk.
The DNR is developing state regulations for the chemicals due to the lack of federal standards for PFAS, which will take years to develop. The state’s rulemaking process could still take a year to complete.
In 2019, the state Department of Health Services recommended a combined groundwater standard of 20 parts per trillion for two of the most common PFAS chemicals: PFOA and PFOS. State health officials expanded that recommendation to include four additional PFAS substances in November. The Environmental Protection Agency has set a health advisory level of 70 parts per trillion for PFOA and PFOS.
Editor’s note: This story will be updated.