January 27, 2022Client Alert

Wisconsin Circuit Court Concludes State Has Limited Authority Related to Sampling Wastewater Discharges for PFAS Compounds

In a closely watched case, the Jefferson County Circuit Court concluded that the Wisconsin Department of Natural Resources (WDNR) has limited authority related to sampling permitted wastewater discharges for PFAS compounds.

WDNR achieved a narrow victory on the issue of sampling authority. The court held that only one Wisconsin statutory provision provides the department with authority related to the sampling of WPDES-permitted wastewater discharges for PFAS. The court also held that WDNR has conditional PFAS sampling authority derived from the federal Clean Water Act and that other statutes and administrative rules do not provide a legal basis for requiring sampling.

The court also concluded that WDNR may not enforce PFAS effluent standards without first engaging in administrative rulemaking. That state rulemaking process is underway.

The court specifically rejected WDNR efforts to regulate PFAS effluent discharges under its “Narrative Toxic Standard,” holding that WDNR "must promulgate their interpretation that PFAS compounds (not currently subject to toxic substances and effluent standards by rule) are toxic substances (regardless of any "consensus" that they, in fact, are toxic substances) as a rule and follow the procedure for so doing as required by Wisconsin law prior to relying on authorization to sample under the ‘Narrative Toxic Standard.’”

Wisconsin Manufacturers and Commerce brought the case after WDNR announced it would conduct involuntary sampling of the effluent from select WPDES-permitted facilities for PFAS compounds. WDNR's initial rationale for sampling was to gather data in support of the economic impact analysis of rulemaking to create surface water quality standards for PFAS. The court held that the economic impact analysis statute does not provide WDNR authority to conduct involuntary sampling. However, it acknowledged that a program of sampling could be independently authorized by law, and the data generated through such independently authorized sampling could be used in the development of an economic impact analysis.

The court's issuance of a final decision dissolves a temporary injunction that had precluded the release of non-anonymized sampling results obtained by WDNR from sampling efforts.

The case is Wisconsin Manufacturers and Commerce, Inc. v. Wisconsin Department of Natural Resources, et al., Case No. 21-CV-111 (Jefferson County Circuit Court).

It is not yet clear if any party plans to appeal.

A separate legal proceeding remains pending in Waukesha Circuit Court challenging WDNR's authority to regulate PFAS as a hazardous substance under the state Spills Law and NR 700 remediation and redevelopment program. 

For additional information, please contact the Michael Best attorneys listed below.

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