Is PFAS Regulation the Next Environmental Issue?
The Wisconsin Fabricare Association (WFI) is battling the WI Department of Natural Resources over PFAS contamination (a man-made chemical found in thousands of products like non-stick cook wear, waterproof clothing, food wrappers, and cosmetics). WI Dry Cleaners are being targeted since they may have cleaned items that have the chemical and has washed into the nearby environment. SDA wants to make its members aware of the issue in Wisconsin since PFAS/PFOS is not specific to that state. Below is a white paper written on the topic.
Is DNR Targeting the Fabricare Industry with PFAS Regulation?
By Delanie M. Breuer
The Wisconsin Department of Natural Resources (DNR) has a new weapon of choice for addressing potential PFAS contamination – the Wisconsin Spill Law. The Spill Law is the set of statutes and rules that allows DNR to regulate discharges of hazardous substances, and the associated remediation of those discharges.
The Spill Law was enacted in 1978 and has undergone several iterations, with another overhaul currently underway. But even after decades of development, it remains unclear whether and when DNR will regulate a substance as hazardous. The federal counterpart to the Spill Law, CERCLA, encompasses a defined list of substances regulated as hazardous. However, under Wisconsin law, the DNR asserts authority to regulate virtually anything, including seemingly benign substances like milk and emerging contaminants without a developed scientific analysis of potential harm.
Among emerging contaminants is a broad class of compounds commonly referred to as PFAS. PFAS is a family of more than 4,000 per- and poly-fluorinated alkyl compounds. The compounds, which share a common carbon-fluorine bond, are man-made and found in thousands of products such as non-stick cook wear, waterproof clothing, food wrappers, and cosmetics.
The DNR is currently working through the administrative rulemaking process to set enforcement standards for PFOA and PFOS, and possible several additional PFAS compounds. The rulemaking process is lengthy, taking up to 30 month in order to fully evaluate the scientific and economic impacts of the proposed regulation. DNR is proposing an enforcement standard of 20 parts per billion (ppb) for PFOA and PFOS combined, with a preventive action limit of 2 ppt for groundwater and surface water. This is one of the most restrictive standards in the world. As a comparison, the EPA has recommended a combined standard of 70 ppb in drinking water. In Canada, the drinking water standard is 600 ppt for PFOS and 200 ppt for PFOA, showing that the impact of PFAS on human health is still unsettled in the scientific community.
While the enforcement standards are being developed, DNR is growing impatient. The agency’s Remediation and Redevelopment Program, which enforces the Spill Law, is refocusing on PFAS cleanup by asserting broad authority to require testing and remediation of at least 36 PFAS compounds. The DNR is also declaring current and previous property owners liable if PFAS is detected, with little or no real evidence of a nexus to the contamination.
This approach by DNR may make the fabricare industry an attractive target. While DNR may not have enforcement standards for PFAS in law just yet, the agency argues that it can force any entity with an open remediation case to test for PFAS under the Spill Law. There are currently over 60 open remediation cases against drycleaners, which gives DNR an opportunity to force PFAS testing and gather data about the industry’s culpability for PFAS contamination. In addition, if DNR forces an entity for test for PFAS, that entity will likely become responsible for remediating that PFAS, a very expensive task.
The DNR justifies forcing drycleaners to test for PFAS by claiming the industry is “associated with PFAS use.” Even if a facility did not use PFAS-containing products, the products being cleaned may have a waterproof coating that was rinsed off and remains in the nearby environment. However, PFAS contamination can also migrate from nearby facilities, and it is nearly impossible to tell the source of a substance that moves so freely in water.
A similar story is being told elsewhere in the textile industry. Recently, DNR pointed to a shoe manufacturer as the responsible party to clean up PFAS from land surrounding a factory it owned more than 30 years ago. The DNR is requiring the shoe manufacturer to perform expensive investigation and likely remediation based solely on the statement that “[s]hoe manufacturing … may have included leather treating chemicals that included perfluorinated and/or polyfluorinated alkyl substances (PFAS).”
But there may be some ways the fabricare industry can push back. First, there are no enforceable standards for PFAS in law, and many argue that DNR cannot legally force testing and remediation of the compounds unless or until those standards are promulgated. Accordingly, many entities, after recognizing the liability associated with identifying PFAS at their facility, are refusing to test for PFAS even when requested to do so by DNR.
Second, if a facility does choose to test for PFAS, it is important to evaluate and understand other potential nearby sources of the compounds. This includes nearly any type of manufacturing, landfills, agricultural fields where municipal waste was spread, and any number of other potential PFAS sources. The DNR seems to concede that they have no ability to force PFAS testing at sites that do not have an open remediation case, so the facility with the open case may be the only entity providing PFAS testing, and may find itself on the hook for PFAS migrating from other, nearby facilities.
Finally, legislators in Wisconsin are paying close attention to this issue, but do not have a full understanding of the financial impact of DNR’s actions. Talking with local legislators to help educate them on the impact of overregulation, particularly when the overregulation seems to target one industry, could help ensure that the laws are written to protect the environment without devastating businesses.
Communication and cooperation within the industry is vital to understanding DNR’s regulatory intent. You can search for and review open remediation cases in the fabricare and other industries on the Bureau for Remediation and Redevelopment Tracking System at https://dnr.wisconsin.gov/topic/Brownfields/botw.html.
Delanie Breuer is a shareholder at Reinhart Boerner Van Deuren. Her practice focuses on energy and environmental regulation, and administrative law.
 DNR, White Paper, Issue: Emerging Contaminants, https://dnr.wi.gov/topic/Brownfields/documents/rules/EmergingContamWhitePaper.pdf (last accessed June 17, 2020).  DNR, Phase II Environmental Site Assessment Report, Shoe Factory Site, 407 N. Main Street, Edgerton WI https://dnr.wi.gov/botw/DownloadBlobFile.do?docSeqNo=160666&docName=20200429_29_Phase_II.pdf