Wisconsin PFAS Standards One Step Closer To Reality

Mar 16, 2022 | Environmental, PFAS, Toxic Tort

The Wisconsin Department of Natural Resources’ (WDNR) Natural Resources Board (NRB) recently voted to recommend to state leaders three PFAS-related regulatory steps, which will have significant impacts on companies in Wisconsin. The Wisconsin PFAS standards were hotly debated by the NRB and throughout the public comment period, but the NRB recommendations will now go to the Wisconsin legislature for consideration and approval. While the legislative process could take more than a year to conclude, it is critical for Wisconsin companies anywhere in the manufacturing or supply chain to immediately assess the impact of the proposed PFAS standards on corporate practices, and make decisions regarding continued use of PFAS in products, as opposed to substituting for other substances.  At the same time, companies impacted by the PFAS proposals must be aware that the bill poses risks to the companies involvement in PFAS litigation in both the short and long term.

Wisconsin PFAS Standards Recommendations

Wisconsin’s NRB recently recommended that the state take three steps with respect to the passage of PFAS-related standards for the state: (1) adopt a drinking water standard of 70ppt for PFOA and PFOS, (2) adopt a surface water standard of 8 ppt for PFOS in surface waters that can support fish, and (3) not adopt any standard for PFAS standards for groundwater contamination. The recommendations now go to the Wisconsin legislature for consideration and potential implementation into the Wisconsin Administrative Code.

There was considerable debate within the NRB regarding the drinking water standard for PFOA and PFOS, with many proponents advocating for a 20ppt standard. The NRB, however, chose to recommend a standard that is consistent with the current EPA advisory level for these two types of PFAS. It remains to be seen whether the EPA will act at the federal level and adopt PFOA and PFOS drinking water standards sooner than the Wisconsin legislature passes a standard for the state. If the EPA establishes a drinking water level below 70ppt, Wisconsin would be required to adopt the EPA’s standard as a baseline regulatory level.

Wisconsin Recommendations On Businesses

Wisconsin’s proposals for PFOA and PFOS drinking water standards will open businesses up to enforcement action for legacy PFOA and PFOS pollution to drinking water sources. While both types of PFAS were phased out in the United States several years ago, Wisconsin’s Environmental Management Division (EMD) would have the power if the 70ppt regulatory limit passes into effect to seek out past polluters and pursue those companies for cleanup costs.

It is of the utmost importance for businesses to evaluate their PFAS risk. Public health and environmental groups urge legislators to regulate these compounds. One major point of contention among members of various industries is whether to regulate PFAS as a class or as individual compounds.  While each PFAS compound has a unique chemical makeup and impacts the environment and the human body in different ways, some groups argue PFAS should be regulated together as a class because they interact with each other in the body, thereby resulting in a collective impact. Other groups argue that the individual compounds are too diverse and that regulating them as a class would be over restrictive for some chemicals and not restrictive enough for others.

Companies should remain informed so they do not get caught off guard. States are increasingly passing PFAS product bills that differ in scope. For any manufacturers, especially those who sell goods interstate, it is important to understand how those various standards will impact them, whether PFAS is regulated as individual compounds or as a class. Conducting regular self-audits for possible exposure to PFAS risk and potential regulatory violations can result in long term savings for companies and should be commonplace in their own risk assessment.

CMBG3 Law is following judicial, legislative, administrative, and scientific developments relating to PFAS. More information about the services we can provide, including risk assessments, to ensure your business is ready for any intersection with these substances can be found on our PFAS Litigation page.

Our attorneys have been at the forefront of PFAS issues, including giving presentations as to the future waves of litigation stemming from PFAS issues. For more information, please contact the Chair of our PFAS – Toxic Torts Team, John Gardella.

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