The state’s largest business lobbying group has filed a suit against the Department of Natural Resources, claiming the agency doesn’t have the authority to sample for “forever chemicals” in the wastewater discharged by businesses across the state.
Wisconsin Manufacturers & Commerce on Monday filed for a restraining order that would halt the agency’s sampling program because there is no “statutory authority to implement and enforce the program to sample for compounds that they have no standards for under state law.”
A Jefferson County judge placed a temporary restraining order on the agency Monday, halting the testing program, but allowed the agency to resume its testing after a Thursday morning hearing.
The DNR is conducting testing at sites across the state to determine standards for the man-made chemicals and how much it will cost businesses releasing them to clean them up or prevent their release. The agency is only testing at businesses that already hold Wisconsin Pollutant Discharge Elimination System permits.
In the complaint, WMC points out that the standards for the chemicals — known as PFAS — may never get legislative approval because of the cost of adherence to the standards. The lobbying group estimates that the cost of removing PFAS from water leaving facilities could be in the tens of millions of dollars.
WMC alleges the testing operation is a “fishing expedition” and that it will harm any business that is found to have PFAS in the water leaving its facility.
“(The DNR’s) unlawful sampling program forces businesses to open their doors to (the DNR) so the (DNR) can sample for compounds that are not regulated under state law, and may never be regulated under state law, and then make those sample results public in a way that stigmatizes those businesses as polluters,” the complaint said.
During the Thursday hearing, the judge issued a temporary restraining order to keep the DNR from publishing any results as testing continues.
A family of man-made chemicals
PFAS are a family of man-made chemicals used for their water- and stain-resistant qualities in products like clothing and carpet, nonstick cookware, packaging and firefighting foam. The family includes 5,000 compounds, which are persistent, remaining both in the environment and human body over time.
PFAS, or per- and polyfluoroalkyl substances, have been linked to types of kidney and testicular cancers, lower birth weights, harm to immune and reproductive systems, and altered hormone regulation and thyroid hormones. The compounds have been found in water and soil across Wisconsin, including Marinette, Peshtigo, Madison, Milwaukee and La Crosse.
The DNR is working to establish standards for two substances within the PFAS family, PFOA and PFOS, two of the most well-known compounds. The Wisconsin Department of Health Services has also recommended standards for several other PFAS compounds thought to be dangerous to humans if consumed.
Members of the PFAS remediation and testing team at the DNR declined a request for interviews, as did WMC.
The Wisconsin Department of Justice will represent the DNR in the case, said Gillian Drummond, the director of communications for the DOJ.
Environmental groups expressed their concern over the suit Thursday because it halts the process of setting any meaningful standards to keep Wisconsinites and the water they drink safe.
“Industry and PFAS-users have been fighting every single attempt to get any sort of protections from PFAS contamination for Wisconsin residents,” said Carly Michiels, the government relations director for Clean Wisconsin. “Most recently they are unsurprisingly fighting against something as simple as sampling our surface waters for PFAS. It is incredibly important that the DNR is able to do their jobs to protect Wisconsinites from these harmful chemicals without any industry-led obstructions.”
WMC and an Oconomowoc leather-cleaning business in February filed a separate lawsuit over the DNR’s cleanup standards for PFAS. The group accused the agency of undermining state law with the way it runs the program, also alleging the DNR can’t use standards that haven’t gone through the rulemaking process and been approved by the Legislature.
There are no hearings yet scheduled for that lawsuit.
‘Ridiculously stringent’ numbers
While the lobbying group is pushing back against PFAS policies created by the DNR, it also pushed back against legislation aiming to curb the use of the chemicals. In December, a legislative committee stripped a provision regulating the use of PFAS-containing fire fighting foam of action levels that would trigger a review for water run through treatment systems, as well as certain terms, such as “foam contaminated materials.”
At the heart of the push against the regulations was Scott Manley, WMC executive vice president of government relations, who called them “ridiculously stringent” and said the numbers were not aligned with other numbers suggested by health regulators.
Wisconsin’s recommended standards for most PFAS compounds are 20 parts per trillion in drinking water, while the federal government’s recommendation is 70 parts per trillion. PFAS are still considered unregulated chemicals by the federal government, so standards must be set by individual states.
State legislators have in the past looked at regulating PFAS, but Democrats and Republicans haven’t seen eye to eye about how to combat and identify the chemicals. Last year, a $7.7 million package of bipartisan legislation failed to make it to the floor and faced significant opposition from groups like WMC, the Wisconsin Paper Council and the American Chemistry Council.
Despite the lack of action on the chemicals from lawmakers, Gov. Tony Evers proposed millions of dollars to address PFAS, including adding 11 staff members to the DNR, setting state standards and testing water supplies across the state.
Laura Schulte can be reached at firstname.lastname@example.org and on Twitter at @SchulteLaura.