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

On August 26, 2022, the United States Environmental Protection Agency (EPA) posted on their website a “Pre-Publication Notice” that discussed its intent to list two PFAS compounds as “hazardous substances” under the “Comprehensive Environmental Response Compensation & Liability Act” (CERCLA), also known as the “Superfund” law. PFAS is an acronym for per- and polyfluorolalkyl substances, which are chemicals that were widely used from the 1960s to the early 2000s in the manufacture of a variety of consumer products, such
Continue Reading Important PFAS Updates from the EPA and the Wisconsin DNR

Please note that views presented in blog articles are those of the author, not those of the Wisconsin Department of Justice, the section, nor the State Bar of Wisconsin. In 2022, the direct effects of climate change are now obvious and familiar. Heightened intensity and frequency of extreme weather events, rising sea levels, and wildfires are frequent flyers in today’s news cycle. Environmental law, in seeking to mitigate environmental degradation, is the legal medium that most directly responds
Continue Reading Immigration Law Should Be Updated to Better Protect Climate Refugees

“I don’t have the trust with (Wisconsin) DHS.” – Wisconsin Natural Resources Board member Terry Hilgenberg, Feb. 23, 2022.1
On Feb. 23, 2022, the Wisconsin Department of Natural Resources (DNR) regulatory policy-setting body, the Natural Resources Board (NRB), met to discuss three proposed final rules to regulate per- and polyfluorinated substances (PFAS) in drinking water, wastewater (through surface water criteria), and groundwater.

In that meeting, the NRB unilaterally increased the proposed final drinking water standard from the Wisconsin
Continue Reading Parts Per Quadrillion: Public Health Messaging and PFAS

In what many consider to be one of the most important environmental cases of the last decade, the U.S. Supreme Court ruled on June 30, 2022, in the case of West Virginia v. EPA, 597 U.S. ___, 2022 WL 2347278, that the authority of the U.S. Environmental Protection Agency (EPA) under Section 111(d) of the Clean Air Act (CAA) in controlling greenhouse gas emissions by requiring existing fossil fuel power plants to convert to the use of non-greenhouse gas
Continue Reading U.S. Supreme Court Case Limits the Authority of the EPA in Regulating Air Emissions

The opinions in this article reflect the views of the author, not the author’s employer or the State Bar of Wisconsin Environmental Law Section. Wisconsin’s Public Trust Doctrine provides that the navigable waters of the state and the carrying places between them are “common highways and forever free” for the use and enjoyment of all citizens.1 State law has long required and protected the public’s right to get to the water, but many people are unaware that
Continue Reading Public Access to Water and Access Abandonment Requests

The U.S. Environmental Protection Agency (EPA) has released updated health advisory levels for four per- and polyfluoroalkyl substances (PFAS). The new levels for PFOA and PFOS, the two most studied compounds, are 0.004 and 0.02 parts per trillion (ppt), respectively. Previously, the EPA’s health advisory level was 70 ppt for PFOA and PFOS, combined. The EPA released these new levels as “interim updated lifetime health advisories” based on evolving science. However, these new health advisory levels are below the
Continue Reading EPA Releases New, Lower Health Advisory Levels for PFAS

As we discussed in recent Legal Updates, because environmental sustainability is now viewed as an essential component of the overall operation of most companies, and Environmental, Social and Governance (ESG) initiatives are gaining in popularity, the value of conducting periodic environmental compliance audits and establishing an environmental management program is essential for companies that desire to be viewed as leaders in environmental compliance. We also discussed environmental regulatory agency programs (“Enviro-Check” and “Green Tier”) that
Continue Reading Why Environmental Compliance Auditing is Important in the Purchase/Sale of a Business

I spend my weeks surrounded by engineers working in wastewater plants. And I work with regulators trying to find the right numbers or standards to ensure we have “clean” water. Both are tied by regulations and laws that demand strict compliance, and are used to “industrial” solutions – measuring end of pipe levels of nutrients and pollutants to confirm those numbers are below established thresholds. If a number is off, you turn a wheel or add some chemical based
Continue Reading Help Clients with Environmental Issues by Using the Tools of Our Trade

​The regulation of Perfluorooctanesulfonic acid (PFOS) and Perfluorooctanoic acid (PFOA) in Wisconsin drinking and surface waters advanced during a Feb. 23 meeting of the Wisconsin Natural Resources Board (NRB), while groundwater regulation for these compounds stalled.1

PFOS and PFOA are part of the group of Per- and Polyfluoroalkyl Substances (PFAS) that were widely used from the 1940s through the early 2000s in numerous consumer products such as nonstick cookware, food packaging, stain resistant coatings, and water repellants. PFAS
Continue Reading An Update on PFAS Regulation in Wisconsin

On April 12, 2022, a Wisconsin judge ruled in the case of Wisconsin Manufacturers & Commerce, Inc. and Leather Rich, Inc. v. WDNR, (Waukesha County Case 2021CV000342) that the WDNR lacks the authority to regulate PFAS chemicals because the Wisconsin Legislature has not established regulatory standards for them. According to the lawsuit, Leather Rich, Inc. entered into a voluntary WDNR environmental cleanup program in 2019, and the following year WDNR indicated that the businesses enrolled in the program were
Continue Reading Wisconsin Judge Rules that the WDNR Lacks Authority to Regulate PFAS