Environmental

Law Clerk Klara A. Henry assisted in the drafting of this blog post.

On April 10, 2024, the EPA issued a highly anticipated final rule establishing legally enforceable limits for five types of PFAS (per- and polyfluoroalkyl substances, often called “forever chemicals”). The rule sets individual limits for these five forms of PFAS, as well as limits on two or more of the substances mixed together. The larger class of PFAS substances consists of almost 15,000 synthetic chemicals, many
Continue Reading EPA Finalizes First-Ever National Drinking Water Standard for PFAS

As of February 13, 2024, the American Society for Testing and Materials (ASTM) E1527–21 “Standard Practice for Environmental Site Assessments: Phase I Environmental Site Assessment Process” is now required when Phase I Environmental Site Assessments (ESAs) are conducted by environmental consultants to qualify for the innocent landowner defense, or the bona fide prospective purchaser or contiguous property owner liability protections, under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) (see: 42 U.S.C. 9601 et seq.).

The goal of
Continue Reading Use of the ASTM E1527-21 Phase I Environmental Site Assessment Standard Practice is Now Required to Meet CERCLA Liability Protections

While some people have been eagerly anticipating college basketball’s March Madness, others have been anticipating the SEC’s long-awaited climate disclosure rule, which was finally announced today. As discussed previously (in a climate-related disclosures blog post from a year and a half ago), this rule is highly contentious and will probably face legal challenges.

The SEC appears to be acknowledging the risk of litigation in rolling back what must be reported under this new rule. The European Union requires
Continue Reading Let March Madness Begin! The SEC Finally Announces its Climate Disclosure Rule

When it reviews a wetland individual permit application, the DNR must consider the impacts of the entire project proposing wetland fill, and not only the physical footprint of the proposed fill itself. DNR’s purview of secondary impacts extends to otherwise unregulated activities of the permitted project where they result in significant adverse environmental consequences.

In its December 5 decision, Kohler Co. v. Wisconsin DNR and Claudia Bricks and Friends of the Black River Forest (2021AP1187), the Wisconsin Court of
Continue Reading Wisconsin Appeals Court Upholds Rejection of Wetland Fill Permit in Kohler Golf Course Project

On November 15, 2023, the Environmental Protection Agency (“EPA”) announced that it was opening a 60-day public comment period as it considers updates it plans to make to its document entitled: Technical Guidance for Assessing Environmental Justice in Regulatory Analysis (the “Guidance Document”). Public Comments need to be submitted by January 15, 2024.

It is important to understand that this Guidance Document is not a regulation, but businesses with an environmental aspect (e.g. manufacturers, waste processors, etc) should be
Continue Reading EPA’s New Push for Environmental Justice: What Small Businesses Should Now Consider

On September 28, 2023, the U.S. Environmental Protection Agency (the “EPA”) finally finalized its rule requiring the reporting and recordkeeping of per- and polyfluoroalkyl substances (“PFAS”). The rule was posted on October 10, 2023, and provides the details of what is required to comply with the rule. This article will provide a high-level summary of the who, how, what, and when of this new rule in an effort to provide a basic guideline of what is expected for those
Continue Reading EPA Announces its Long-Awaited PFAS Reporting Requirements under the Toxic Substances Control Act

In the wake of the U.S. Supreme Court’s
Sackett v. EPA decision,​1 the landscape of wetland protections in Wisconsin has changed. While Wisconsin boasts robust wetland protection statutes
compared to other states, a significant exemption to the permitting regime within those statutes hinges on the federal definition of wetlands. The “nonfederal exemption,” established by
2017 Wisconsin Act 183, is an exemption to the permit requirement when filling or discharging into certain wetlands that are not covered
Continue Reading An Uncertain Future: 'Sackett's' Impact on the Nonfederal Wetland Exemption in Wisconsin

It is that time of year again. Summer is around the corner, and lakefront and riverfront property owners all across the state are starting to think about when to get their piers back in or what day they want to drop their boat in. Inevitably, this time of year is when neighbors old and new may start to interfere with other waterfront property owners’ rights to access the water. One of the many issues surrounding lake and river property
Continue Reading What are Riparian Rights & Why are They Important?

The recent proposal by the Environmental Protection Agency (EPA) to designate two per- and polyfluoroalkyl substances (PFAS) as “hazardous substances” under the federal Comprehensive Environmental Response, Contamination, and Liability Act (CERCLA or “Superfund”) promises to provide greater information concerning the release of PFAS into the environment, as well as powerful tools to require the cleanup and recover costs for such releases.

However, because of the ubiquity of these so-called “forever chemicals,” the proposed designation also raises a number of
Continue Reading Implications of the EPA’s Proposed Rule Designating PFAS as Hazardous Substances

Nitrate and nitrite are about to reemerge as groundwater and drinking water chemicals of concern.

Our new research reveals that current nitrate and nitrite drinking and groundwater standards do not reflect a true weight of evidence analysis of the peer-reviewed literature and government documents. As a result, such noteworthy authorities as U.S. Environmental Protection Agency (EPA), the World Health Organization, California EPA, Health Canada, Minnesota Department of Health, and Wisconsin Department of Health Services rely on a curated list
Continue Reading History Judges Nitrate and Nitrite Standards a Scientific Failure

In January of 2023, the federal Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers (USACE) published in the Federal Register (see Federal Register/Vol. 88, No. 11, January 18, 2023) new rules that define which water bodies are classified under the Clean Water Act (CWA) as “waters of the U.S.” (WOTUS). While this may not appear to be significant, the adoption of these rules will have major implications for how federal agencies will identify the types of
Continue Reading The EPA and Army Corps’ “Waters of the U.S.” (WOTUS) Rule to Become Effective on March 20

In 2010, Wisconsin passed some of the earliest and most comprehensive phosphorus regulations in the nation. Environmental Protection Agency (EPA) holds up Wisconsin as a model for
Region 5 states (the upper Midwest).

Wisconsin is one of just four states that has adopted total phosphorus and total nitrogen criteria for two or more waterbody types.1

In February, a statewide conference brings together academics, water and agricultural professionals, agency representatives, farmers and producers, lawyers, and lawmakers to evaluate the
Continue Reading Analyzing the Impact of Wisconsin’s Phosphorus Rules on Water Quality

The U.S. Environmental Protection Agency (EPA) announced a proposed rule in December 2022 that, if issued, would eliminate a regulatory exception that exempts facilities from reporting the use of de minimis amounts of PFAS (per- and polyfluoroalkyl substances) and other “chemicals of special concern” subject to Toxic Release Inventory (TRI) reporting. Under the Emergency Planning and Community Right-to-Know Act, certain facilities that manufacture, process or otherwise use TRI-listed chemicals must annually report releases, and suppliers of TRI substances must
Continue Reading EPA Proposes Rule to Eliminate De Minimis PFAS Reporting Exemption

On December 5, 2022, the U.S. Environmental Protection Agency (EPA) provided notice in the Federal Register (see “Federal Register”/Vol. 87, No. 232/Monday December 5, 2022) of a Proposed Rule that would make significant changes for reporting of PFAS compounds pursuant to the “Toxic Release Inventory” (TRI) reporting requirements of the Emergency Planning Community Right-to-Know Act (EPCRA).

The TRI Rules require that specific industries identified under a variety of SIC Codes, which includes most manufacturers, mining facilities, electric power generating
Continue Reading The EPA Proposes to Change Toxic Release Inventory (TRI) Reporting for PFAS

The U.S. Environmental Protection Agency (EPA) has weighed in on industry concerns regarding the financial and recordkeeping burden of its “forever chemical” reporting rule that will affect manufacturers and importers across a variety of industries.

On Friday, November 25, 2022, the EPA released its Initial Regulatory Flexibility Analysis (IRFA) related to the proposed rule requiring PFAS reporting by manufacturers. The PFAS reporting rule was proposed in June 2021 and drew criticism from industry groups for the potential economic impact,
Continue Reading EPA Analysis Addresses Costs of “Forever Chemical” Reporting Rule

“Environmental law is dead. Long live environmental law.”

This proclamation popped into my head while listening to the keynote speaker, Robert Kaplan, EPA Region 5 Regional Counsel – at the 34th Annual Environmental Law Update on Sept. 15 from State Bar of Wisconsin PINNACLE® – no doubt in part due to the passing of Queen Elizabeth II just a few days prior.
The Keynote
In his keynote address, Kaplan explained that when he was in college, he thought there
Continue Reading The Death of Environmental Law has Been Greatly Exaggerated