On August 12, the Department of Natural Resources’ policy board unanimously decided to table proposed restrictions on PFAS after receiving push back from the regulated community and the Joint Committee for Review of Administrative Rules (JCRAR) about the scope of the regulations.
Passed by the legislature last year, 2019 Wis. Act 101 restricts the use of fire fighting foam containing perfluoroalkyl or polyfluoroalkyl (PFAS) to emergency situations and testing facilities. It also explicitly grants DNR authority to “determine appropriate containment, treatment, and disposal or storage measures for testing facilities.” Act 101 instructs DNR to promulgate an emergency rule on these measures by September 7th, 2020.
DNR returned with Emergency Rule WA-06-20(E) – Relating to Firefighting Foam Regulation. The proposed rule went on the agenda for Natural Resources Board’s August 12th meeting.
Several business associations, including Wisconsin Manufactures & Commerce, Wisconsin Paper Council, Midwest Food Products Association, Wisconsin Civil Justice Council, and Wisconsin Water Alliance wrote to the board flagging multiple concerns with the proposed rule, including its scope which exceeded the original boundaries of the legislative delegation. The letter noted:
“[A]gencies no longer have “implied” authority to regulate as they wish. Instead, agency regulatory authority must be explicit per 2011 Wisconsin Act 21…If the Legislature intended to authorize the Department to establish effluent limits for fourteen different PFAS compounds, it would have explicitly said as much in the text of Act 101. It did not. In the absence of such an explicit statutory directive, the Department does not have the requisite legal authority to create the effluent limits proposed in Table 1 of this rule.”
JCRAR also sent a letter expressing concerns with the emergency rule and how it created standards without explicit statutory authority to do so.
The Natural Resources Board responded by tabling the proposed emergency rule.