Wisconsin’s PFAS Standards Face Potential Legal Challenges Amid EPA’s Rollback
In the wake of the Environmental Protection Agency’s (EPA) recent decision to ease certain chemical restrictions, Wisconsin’s drinking water standards for PFAS (per- and polyfluoroalkyl substances) may be at risk of legal challenges. This development has raised concerns among policy experts who believe that the state’s regulations, which mirror earlier federal mandates, could now be more vulnerable.
Earlier this week, the EPA proposed maintaining limits for two extensively studied PFAS chemicals, while reducing standards for four others. EPA Administrator Lee Zeldin criticized the previous administration’s actions, stating, “cut corners and failed to follow the law” when setting initial drinking water standards for PFAS.
Wisconsin Governor Tony Evers expressed his disapproval of the EPA’s move. He labeled the rollback as a “reckless” decision that undermines public health and safety efforts, as noted in his post on X.
Last year, the EPA initially proposed revising PFAS standards after facing lawsuits from water utilities and chemical firms, questioning the sustainability of legal challenges. Despite this, the Wisconsin Department of Natural Resources (DNR) proceeded with regulations aligned with the Biden-era standards, fearing the state might lose regulatory power over the chemicals without them.
Dave Strifling, who directs Marquette Law School’s Water Law & Policy Initiative, explained to WPR’s “Wisconsin Today” that both state and federal laws require Wisconsin’s regulations to be at least as stringent as federal ones under the Safe Drinking Water Act. He remarked that the state’s regulations “might be a little more susceptible to challenge than they were before the federal rollbacks occurred, but there’s a lot of uncertainty here.”
Potential challenges could arise from water utilities or chemical companies claiming insufficient time to comply with state regulations. The DNR’s justification for aligning its limits with Biden-era standards might lose ground if the EPA’s rollback proceeds.
Residents in Wisconsin, particularly in areas affected by PFAS, have voiced their opposition to the EPA’s rollback. Doug Oitzinger from the nonprofit Save Our Water highlighted the ongoing legal opposition, pointing to an anti-backsliding provision in the Safe Drinking Water Act that prohibits the reduction of standards. “These are toxic substances that we should not be having in our drinking water, and certainly should not be flowing out into the environment,” Oitzinger asserted.
Meanwhile, environmental law expert Steph Tai from the University of Wisconsin-Madison raised doubts about the likelihood of successful legal challenges to the state’s regulations. Tai referenced past decisions where the Wisconsin Supreme Court supported the DNR in PFAS-related cases.
In conjunction with the rollback proposal, the EPA announced nearly $1 billion in new funding to tackle PFAS issues, with $15 million earmarked for Wisconsin. Additionally, Governor Evers authorized the use of $133 million from a PFAS trust fund to combat contamination.
Federal officials are maintaining standards for PFOA and PFOS at 4 parts per trillion but are relaxing limits on PFNA, PFHxS, GenX, and PFBS. Earlier this year, Wisconsin set its standards for all six chemicals.
Strifling noted that the rollback might also challenge Wisconsin’s limits under the 2017 REINS Act, which demands legislative approval for regulations costing over $10 million in any two-year span. The DNR’s economic analysis indicated no additional state costs beyond federal requirements.
The Wisconsin Manufacturers and Commerce, the state’s predominant business lobby, contended that the DNR did not adhere to legal procedures by excluding state costs. Adam Jordahl, the organization’s director of environmental and energy policy, urged the DNR to adjust state limits to align with the EPA’s proposal.
The DNR estimated that meeting the Biden-era standards would cost water utilities and businesses $26.6 million in the first year. They anticipated that 96 water systems might need to spend approximately $12.6 million to address elevated PFAS levels. However, only four water systems would be affected by the proposed limits on the four chemicals facing relaxed standards. Wisconsin’s PFAS regulations are slated to take effect on July 1.
