EagleHerald staff writer
MARINETTE—A move by Wisconsin Manufacturers and Commerce (WMC) along the often politically and legally wrought frontlines of the PFAS (per- and polyfluoroalkyl substances) issue, hit close to the heart for Carly Michiels.
In fact, just about every new development in the fight to regulate—or eliminate—PFAS stirs the temperament of passion and action for the City of Marinette native. She serves as government relations director for Clean Wisconsin, a 501c(3) organization dedicated to environmental protection and preservation through the engagement of science, law and policy. A big part of her work involves advocating in Madison, for environmental and human protection against the adverse consequences of PFAS.
She feels that a recent court action by WMC impedes efforts by the Wisconsin Department of Natural Resource (DNR), the regulatory agency responsible for setting standards that regulate the chemicals used in industry and business.
In a step to block a specific method of sampling for PFAS from industrial and business facilities, the WMC filed a complaint to the State of Wisconsin Circuit Court in Jefferson County March 29. The complaint names as defendants the DNR, Secretary of the DNR Preston Cole and the Wisconsin Natural Resource Board.
While Michiels agrees that a critical piece to the PFAS solution starts with remediation and clean up, she feels, at least in part, that another vital piece to the puzzle lies with those individuals responsible for establishing the regulatory standards, enforcement rules and policies that govern PFAS manufacturing and its use.
“The biggest part of it is prevention and you prevent PFAS from … harming public health and getting into our public water by setting standards,” Michiels told the EagleHerald. “But you have groups like WMC standing in the way, bringing out every tool they have in their toolbox to fight any movement forward … I think that is a huge hurdle to getting any sort of remediation for people.”
And for Michiels, those impedances perpetuate the continued injury upon people in Wisconsin communities that are mired in the nag of daily concerns over PFAS plumes infringing on their private or public drinking water supplies or leaching into the states waterways.
“People have a right to know what is and what is not contaminated with PFAS,” Michiels said. “So with industry obstructing the (PFAS) sampling and standing in the way, is totally ignoring the problem.”
But the WMC comes at the PFAS issue from another point of view. As a business trade association, its website states that it remains dedicated to making Wisconsin one of the “most competitive states in the nation in which to conduct business.”
It views the DNR’s actions regarding sampling as harmful to business and industry operations.
WMC’s complaint asserts that an “unlawful sampling program” by the DNR, which tests for more than 30 PFAS compounds at effluent wastewater discharge locations of various business and industry facilities in the state, lies outside the purview of the department’s legal regulatory authority. Effluent discharges carry water away from the facility and either into the surrounding water ways or into a municipal wastewater system.
But Michiels contends that the DNR’s sampling program could better help in pinpointing PFAS sources. She said that when industry obstructs that process, it limits the state’s capacity to identify the scope of the contamination.
Officials with the DNR could not be reached. Additionally, while the case remains in litigation, officials with WMC declined to comment, referring EagleHerald questions to the language within the legal complaint document.
“Getting any sort of meaningful protection or remediation … for actually cleaning up this harmful chemical (comes through) sampling and identifying where (PFAS) are (originating),” Michiels added. “I think that all goes back to public health and protecting people from these harmful chemicals.”
PFAS represent a family of over 4,700 manmade chemical compounds used since the middle of the 20th Century in a large array of consumer goods and industrial products. Mounting scientific research continues to expose potential links between PFAS exposure and adverse human health effects, including cancer.
THE COMPLAINT: NO CURRENT PFAS STADARD
The WMC’s complaint also addresses the burdens that the DNR’s sampling program imposes on the specific facilities from which samples are drawn. Those facilities hold Wisconsin Pollutant Discharge Elimination System (WPDES) permits that allow for the legal effluent discharge of certain substances on the condition that levels of those substances remain below a certain threshold.
The WPDES permits conform only to existing regulatory standards set in place for other pollutants such as biological, radioactive and chemical wastes. PFAS is not yet included on that list.
Since September of 2019, the DNR has been engaged in a “permanent rulemaking process” to establish enforceable PFAS regulation in surface water like lakes and rivers into which effluent wastewater discharges sometimes flow. The rulemaking process represents an arduous journey of meticulous research, community interaction followed by legislative procedures. It can take upwards of 31 months to complete.
According to WMC’s court grievance, the DNR conducts its PFAS sampling program to assist in the eventual establishment of PFAS regulatory standards. However, as it currently stands, no PFAS standards exist. And that fact serves as one of the principal contentions behind the WMC complaint.
The DNR does “not have the statutory authority to implement and enforce their program to sample for compounds that they have no standards for under state law,” the complaint expounds in the second paragraph of a 15-page document.
Moreover, the WMC maintains that because the DNR only samples the effluent water for PFAS and not the influent water (coming into the facility), its sampling program does not accurately reflect the amount of PFAS (if any) that would be attributed solely to the facility’s operations.
Additionally, the DNR makes a facility’s sample results publicly available, which fuels another WMC concern: The potential stigmatization of those companies.
“…As (the DNR) seek to publish the results of their sampling program, they are risking significant reputational harm to the businesses that are being unlawfully forced to participate in this (sampling) program, even those businesses that are in compliance with state law and their own permits.”
In accordance, the judge overseeing the complaint granted a temporary restraining order during a hearing on Thursday. It restricts the DNR from publicly releasing any sampling data which it collects.
In its efforts to efforts ensure Wisconsin businesses remain successful and competitive, WMC’s March 29 complaint represents only one of several discords the organization continues to express with state policies and actions regarding PFAS.
In a January press release challenging Gov. Tony Evers’ order to the Wisconsin Department of Justice to pursue “taxpayer-funded lawsuits against employers who process or use (PFAS) …”, WMC President & CEO Kurt Bauer called the move “unfortunate.”
“They want to sue businesses for the past use of compounds for which no standards have been set under either state or federal law,” Bauer said in the press release.
LEGISLATURE DRAGGING ITS FEET
Still, for Michiels, the solution remains the setting of official rules regulating PFAS. To that point, she cited various past PFAS bill proposals that either failed to pass or that became laws without much clout for enforcement. And she lays some of the blame at the feet of legislators in Madison.
“Wisconsin has one of the most inactive legislatures in the nation, right now,” she said. “And I think getting any sort of comprehensive bill on PFAS has definitely suffered from COVID-19 and our inactive legislature.”
Amidst the pandemic, the pause button remained perpetually pressed on PFAS, but Michiels expressed optimism for some specific items related to PFAS currently in the Governor’s proposed budget and in the continued DNR sampling programs and PFAS rulemaking process.
“It all comes back to resources and having adequate funding,” she said, adding that the upcoming budget plays a key role in acquiring those resources. “Groups like the WMC are fighting that process … We (Clean Wisconsin) would like to see some bipartisan support around those initiatives.”