MacIver News Service | July 18 , 2019
By M.D. Kittle
MADISON, Wis. — With scant public input, Gov. Tony Evers’ administration has just crafted some of the most draconian environmental standards in the world.
And Wisconsin business leaders are “completely terrified” about the high costs the stringent regulations will bring — for what science suggests are negligible public health outcomes.
On July 8, the state Department of Health Services published its groundwater quality standards recommendations for 27 chemical substances. On the list are two synthetic compounds in the polyfluoroalkyl (PFAS) with hefty chemical names — perfluorooctane sulfonate (PFOS) and perfluorooctanoic acid (PFOA).
The synthetics are found in a variety of products, from non-stick cookware and stain-resistant sprays to firefighting foam. There are some 3,500 different compounds under the umbrella of PFAS.
While the compounds are no longer manufactured in the United States, PFOS And PFOA remain in the soil, groundwater and other substances. The problem, according to the Environmental Protection Agency, is that both chemicals are very persistent in the environment and in the human body — meaning they don’t break down and can accumulate over time.
Certain studies indicate PFOA and PFOS can cause reproductive and developmental, liver and kidney, and immunological effects in laboratory animals, according to the EPA.
“Due to their widespread use and persistence in the environment, most people in the United States have been exposed to PFAS,” an EPA online backgrounder notes. “There is evidence that continued exposure above specific levels to certain PFAS may lead to adverse health effects.”
But what is considered a safe amount? What’s a toxic level? The science is anything but settled on those questions.
That fact hasn’t stopped the environmental extremists in the Evers administration from creating what industry experts and business advocates contend are impossibly rigid standards that will ultimately cost the Badger State economy big.
“Wisconsin’s DHS has recommended one of the most restrictive proposed standards in the nation at 20 parts per trillion combined,” the Water Quality Coalition stated last week in a press release. The coalition is composed of industry associations, scientists, and legal scholars, including the American Chemistry Council, the National Waste & Recycling Association, the Wisconsin Paper Council, and Wisconsin Manufacturers & Commerce.
The standards recommended by the Department of Health Services mean enforcement could be triggered by as little as 10 parts per trillion of PFOS and 10 parts per trillion PFOA combined. But DHS takes the stringent standard further, setting out a combined preventive action limit for PFOS and PFOA at 2 parts per trillion, the lowest enforceable limit in the world, according to the Water Quality Coalition.
“The DHS standard would have a detrimental impact on Wisconsin’s economy. It will significantly impact tax payers, utility rate payers, job creators, and local governments not only with the cost of installing expensive and underdeveloped control equipment, but also the cost of fines and forfeitures when the regulated community cannot meet a nearly impossible standard,” the coalition wrote in its Comments on DHS’ recommended groundwater standards for PFOA and PFOS.
New York is going down the road with similar aggressive environmental standards, and the costs are adding up.
Last year, the state set recommended levels for PFOA and PFOS (perfluorooctanesulfonate) at 10 parts per trillion for each compound individually, not quite as stringent as Wisconsin’s recommended standards but thought to be the toughest in the nation at the time.
The New York agency that oversees community water systems estimates the cost of compliance by the local entities alone will top $850 million in capital expenditures and $45 million in operation and maintenance costs. Those estimates don’t take into account the expensive technology the private sector would have to deploy to ensure compliance.
More so, DHS groundwater quality standards would apply to businesses that are not even manufacturing PFAS-based products.
“They’re all completely terrified (of what the stringent new standards could mean),” Lane Ruhland, director of Environmental and Energy Policy for Wisconsin Manufacturers & Commerce said of Wisconsin business owners. “The technology on that scale, to get to that 2 parts per trillion, if it does exist, is extremely expensive. It means shutting down.”
Wisconsin’s critical paper industry would definitely feel the pinch, Ruhland said. The Badger State’s paper makers employ 30,000 people and provides about $2.5 billion in payroll.
“We are deeply concerned that such a standard could devastate Wisconsin’s economy and significantly raise the cost of residential water. It would require municipal utilities, industrial facilities, and energy producers, to reach near-zero discharge levels of compounds that are pre-existing in groundwater,” the Water Quality Coalition stated in its press release.
Evers has billed 2019 the Year of Clean Drinking Water. Critics of his administration’s stringent water quality standards assert the year marks the return of environmental extremists running public policy in the Evers administration.
A DHS official did not return MacIver News Service’s requests for comment this week, but an agency official did comment in a press statement.
“Using a rigorous, evidence-based process will help us assure that our water is safe, no matter where we live in the state,” said DHS Deputy Secretary Julie Willems Van Dijk in the press release.
But what did the agency’s “evidence-based process” consist of? DHS drew from the Department of Natural Resources’ latest watch list of contaminants and “extensively reviewed scientific literature about each substance,” according to the administration. DHS used federal quality standards as a starting point “when available,” and created a document describing the “rationale” for each enforcement standard, according to the agency.
“In order to make these recommendations, DHS toxicologists reviewed over 5,000 scientific findings,” states a joint release from DHS, DNR, and the Department of Agriculture, Trade and Consumer Protection.
That’s a stretch, according to the Water Quality Coalition. In its comments to DHS, the coalition noted that, according to recent testimony, “the evaluation was completed by one, single toxicologist at DHS who relied on a total of three studies to set a standard that could shut down a significant portion of industry in our state.”
WMC’s Ruhland said DHS relied on a 2018 study from the Agency for Toxic Substances & Disease Registry. The study examined Minimal Risk Levels, but it cautions that “MRLs are not intended to define clean up or action levels” for any agency. The study was clearly meant to be an especially conservative review of hazardous substances, and its thresholds were not designed to set regulations.
Ruhland said DHS also reviewed EPA studies. But the state agency failed to stop at the EPA’s 70 parts per trillion recommendation, instead insisting on more stringent standards. That’s fine, as long as the standards are based on significant science emerging since the EPA issued its recommendations, testimony notes. Water Quality Coalition members and other critics of DHS’ standards argue the Minimal Risk Levels study doesn’t fit the definition of significant emerging science because of its qualifying caveat. Absent more settled science, the EPA number should be applied, according to EPA guidelines.
While there is growing fear about the dangers of PFAS, just how they affect human health remains unclear. Several studies suggest minimal, if any health impact from the compounds — even at levels of exposure several magnitudes higher than what DHS has proposed, according to the the Water Quality Coalition.
“EPA does not anticipate a person to experience negative health effects if they drink water at or below this level every day over their entire lifetime,” an EPA spokesperson told MacIver News Service in an email response.
The agencies health advisories, however, are non-enforceable and non-regulatory and provide technical information to states agencies and other public health officials on health effects, analytical methodologies, and treatment technologies associated with drinking water contamination, the spokesperson added.
The Agency is moving forward with the drinking water standard setting process outlined in the Safe Drinking Water Act (SDWA) for PFOA and PFOS. EPA expects to publish a proposed regulatory determination for PFOA and PFOS by the end of this year. The Agency is also gathering and evaluating information to determine if regulation is appropriate for other chemicals in the PFAS family.
Under the Safe Drinking Water Act, states may develop regulations that are no less stringent than EPA’s National Primary Drinking Water Regulations, the spokesperson said.
“(T)he body of science necessary to fully understand and regulate these chemicals is not yet as robust as it needs to be,” David Ross, EPA assistant administrator for Water, testified during a March 28 congressional hearing on PFAS.
“Studies in humans and animals are inconsistent and inconclusive but suggest that certain PFAS may affect a variety of possible endpoints. Confirmatory research is needed,” notes the National Center for Environmental Health on its website.
Environmental Extremism Returns?
If confirmatory research is needed, why is the Evers administration bolting ahead on the rigid PFOA and PFOS standards? More so, why did the governor limit to one day the comment period on DHS’ recommendations? The process provides for 21 days, unless the governor decides to reduce the comment period.
Administration officials declined to answer those questions.
But Sen. Tom Tiffany worries Evers is making good on his promise earlier this year to “unleash” the DNR, just as then-Gov. Jim Doyle, also a Democrat, did during his tenure in office.
Tiffany points to Todd Ambs, who directed the DNR’s water division from 2003 to 2010 and led the agency’s costly and failed phosphorus-fighting initiate. In 2014, then-Gov. Scott Walker, a Republican, signed a measure easing up the rigid Doyle-era standards. The bill was backed by 100-plus municipal treatment plant operators concerned the previous regulations could cost billions of dollars to meet. Municipal permit-holders, under the law, may delay the more stringent limits if they can show financial hardship. Many could and can.
“This is my concern, and it goes back to what I have talked about since Gov. Evers announced his appointments to various positions. Particularly, does this have Todd Ambs’ fingerprints on it,” Tiffany said. “He gave us phosphorus regulations without legislative approval, and it did very little to reduce emissions.”
Ambs is back. Earlier this year the environmental activist was named DNR assistant deputy secretary.
As the Water Quality Coalition notes, DHS’ standards recommendations aren’t really recommendations; they must be applied as DNR puts together its enforcement plan.
Tiffany says he’s hopeful the Evers administration will reconsider what the senator asserts has been a rush job on the governor’s way to a “photo-op.”
While Republican-led reforms in recent years could ultimately stop the DHS standards dead in their tracks, that could take a while. Wisconsin’s first-in-the-nation REINS Act demands economic impact reviews on government rules and regulations suspected of having a price tag of $10 million or more over two years. Critics say DHS’ standards will certainly do that.
The Water Quality Coalition contends that until the standards are put into administrative code, the stringent water quality regulations aren’t enforceable. But the Evers administration has been known to push constitutional limits in its first seven months.
Coalition members are not ruling out litigation.
For now, the coalition requests DHS reconsider its recommendation for PFOA and PFOS groundwater standards.
“The Wisconsin Water Quality Coalition is concerned with the lack of transparency in the crafting of this recommended number as well as the potential detrimental impact on industry and the taxpayers alike,” the organization stated. “We will continue to advocate for regulation based on science that properly balances our health impacts with protecting the future of Wisconsin’s economy.”