United States: Wisconsin PFAS Groundwater Standards Halted—for Now

The wait will continue for Wisconsin per- and polyfluoroalkyl substances (PFAS) enforcement standards for groundwater. Last week the Wisconsin Department of Natural Resources (DNR) formally halted its efforts to adopt PFAS groundwater standards due to the significant projected enforcement and compliance costs associated with the standards.

PFAS are nicknamed "forever chemicals" because they do not break down in the environment and comprise a diverse group of many man-made chemicals that have been used in commercial products and industrial processes worldwide since the 1940s.

Last fall, the DNR initiated a rulemaking process to enact groundwater standards of four PFAS (after the U.S. Environmental Protection Agency issued health advisories for these same substances).¹ Anticipated costs are to blame for stopping the process. The estimated implementation and compliance costs of the DNR's proposed standards would total over $33 million in the first two years. This estimate exceeds the $10 million agency rulemaking threshold.

As a consequence, the DNR now needs approval from the Wisconsin Legislature in order to continue. Specifically, the Wisconsin Legislature must enact a law authorizing the DNR to resume its rulemaking process. Until then, the draft standards are shelved.²

What does this mean for industry? While PFAS groundwater standards are likely on the horizon, they will not be here as soon as expected. In fact, they may not become effective until 2025 (or later) in light of this delay. Industry should use this time wisely to audit their PFAS risks and prepare their operations, products, and permitting for groundwater enforcement standards.

Footnotes

1 The DNR's proposed rule would set groundwater enforcement standards of 20 parts per trillion (ppt) for PFOA and PFOS; 300 ppt for HFPO-DA; and 450 parts per billion for PFBS. To compare, the EPA's proposed national primary drinking water regulations include enforcement levels of 4 ppt for PFOA and PFOS as individual contaminants, while including HFPO-DA and PFBS in a standard set for a combined group of PFAS. Per- and Polyfluoroalkyl Substances (PFAS): Proposed PFAS National Primary Drinking Water Regulation, Env't Prot. Agency, https://www.epa.gov/sdwa/and-polyfluoroalkyl-substances-pfas.

2 Wis. St. § 227.139(1) (2017).

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