MacIver News Service | July 26, 2019
By M.D. Kittle
MADISON, Wis. — It looks like the Evers administration could be facing future litigation for its recent rollout of environmental standards that critics say would be the most stringent in the world.
“There’s a huge possibility for litigation,” said Scott Manley, senior vice president of Wisconsin Manufacturers & Commerce, “because it’s an unlawful rule and the statutory remedy for that is to go to court.”
WMC is a member of the Water Quality Coalition, made up of industry associations, scientists and legal scholars. Members include the American Chemistry Council, the National Waste & Recycling Association, the Wisconsin Paper Council, and the Wisconsin Civil Justice Council.
Earlier this month, 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.
“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 in a press release.
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, significantly lower than the EPA’s 70 parts per trillion. 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.
And the Evers administration provided just one day for public comment on the DHS standards, which are in line to be implemented and enforced by the state Department of Natural Resources.
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.
“DHS has spent over a year working behind closed doors with no public input or comment and unleashed these incredibly draconian standards no one could ever meet,” Manley said. “This is not guidance, it’s a rule, and it meets the statutory definition of a rule and should have been promulgated as such. It should have gone through all of the steps of the rule-making process, which provides transparency and legislative oversight.”
New York is going down a similar road of 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.
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 (70 parts per trillion) every day over their entire lifetime,” an EPA spokesperson told MacIver News Service in an email response.
“(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.
Yet, the Evers administration is charging ahead with what appears to be the most stringent environment standards in the world — while drastically limiting transparency.
“That’s not the way we’re supposed to do law-making in this state,” Manley said. “We’re supposed to have a transparent, accountable process where we the people participate. That did not occur with the proposed standards … They made law and they did so behind closed doors.”