AG Kaul & EPA Action

Wisconsin Attorney General Josh Kaul recently led a 22-state coalition urging the federal Environmental Protection Agency (EPA) to regulate PFAS chemicals.

The comments from the multistate coalition

• Urge EPA to regulate specific PFAS chemicals PFOA and PFOS under the Safe Drinking Water Act, setting national drinking water standards.
• Request EPA regulate PFOA and PFOS at levels “well below” the existing EPA health advisory level of 70 parts per trillion (ppt). The comments reference proposed and enacted PFAS regulations in various states at levels as low as 8 ppt.
• Encourage EPA to regulate chemicals in the PFAS family other than PFOA and PFOS and to evaluate regulating all PFAS as a class.
• Recommend EPA promulgate drinking water standards as soon as possible, but no later than 18 months from the time EPA determines to regulate. (EPA has made a preliminary determination to regulate PFOA and PFOS but has not made that determination for other PFAS chemicals.)

States joining Wisconsin in the comments were California, Colorado, Connecticut, Delaware, District of Columbia, Illinois, Iowa, Maine, Maryland, Massachusetts, Minnesota, Nevada New Jersey, New Mexico, New York, North Carolina, Oregon, Pennsylvania, Rhode Island, Virginia, and Washington.

 

Wisconsin Regulation – Rulemaking and PFAS Action Council

At the state level, Wisconsin’s Department of Natural Resources (DNR) is in early stages of promulgating rules that would regulate PFOA and PFOS. The state Department of Health Services (DHS) has recommended a combined groundwater standard of 20 ppt and a preventive action limit of 2 ppt for those two chemicals, but those recommendations are not enforceable until DNR finalizes rules.

Meanwhile, DNR, as directed by the governor in Executive Order #40, is leading a group of Wisconsin state agency officials (Wisconsin PFAS Action Council, or WisPAC) as they prepare to present a state PFAS action plan to the governor and legislature. WisPAC met for the first time in several months on June 17.

DNR began the June 17 meeting by laying out a revised timeline for the PFAS action plan. The executive order set a July 1 deadline for the action plan, but due to COVID-19 DNR now estimates they will publish the plan in November. WisPAC will meet again next on July 16 and plans to spend the next few months finalizing recommendations to be included in the report.

DNR emphasized that work on PFAS has continued throughout the COVID-19 pandemic. DNR has been participating in monthly calls with other state leaders in the Great Lakes PFAS Task Force. DNR has also established an Office of Emerging Contaminants, which is currently focused on PFAS. In addition to drafting rules on PFAS water standards, DNR is continuing research and drafting guidance on biosolids, disposal, and firefighting foam best practices.

Other agencies provided updates on their work on PFAS. DHS said they will release groundwater standard recommendations on the next set of PFAS compounds (other than PFOA and PFOS) this fall. Agencies including the UW System, Department of Public Instruction, Department of Safety & Professional Services, Office of the Commissioner of Insurance and Department of Transportation have continued research and public outreach on PFAS issues.

DNR is providing WisPAC members with issue papers outlining agencies’ recommendations for the action plan. DNR will gather feedback from WisPAC members on those issue papers for the next meeting, where WisPAC members will approve the plan outline.

DNR also laid out and requested feedback on ideas from the council’s two subgroups. The local government subgroup has suggested:

• Banning PFAS altogether
• Providing tools for local governments (e.g. a model industrial user survey, model ordinances, model public communications)
• Creating a licensing program for fire department use of PFAS containing foams
• Implementing emergency rules for interim groundwater standards
• Creating a centralized state agency PFAS webpage

The citizens subgroup has suggested:

• Banning PFAS altogether
• Giving DNR flexibility to address additional emerging contaminants
• Allowing local governments to set more restrictive PFAS standards
• Drafting guidance about PFAS liability, specifically on the Voluntary Party Liability Exemption program and responsible party liability
• Prioritizing communication about avoiding exposure

Ideas taken from DNR’s public input survey included banning PFAS altogether and looking at food safety issues and concerns with specific sites.

DNR took public comments before adjourning the meeting.

 

More on PFAS regulation in Wisconsin.

 

 

On June 22, the Wisconsin Supreme Court accepted three new cases. In addition to two criminal cases, the court accepted Anderson v. Town of Newbold, which will determine whether municipalities can enact shoreline frontage requirements under their subdivision authority, notwithstanding statewide zoning authority requirements in statute.

Wisconsin law prohibits towns from enacting shoreland zoning ordinances (Wis. Stat. § 59.692). However, towns do have authority to enact subdivision regulations under Wis. Stat. § 236.45.

The issue before the court in this case is whether the Town of Newbold can enforce a Shoreland Ordinance establishing minimum shoreland frontage requirements under § 236.45. Plaintiff Michael Anderson argues the Shoreland Ordinance is in actuality an illegal zoning ordinance and thus unenforceable by the town. 

The court will examine whether it was the intent of the Legislature in 2015 Act 55 to set statewide shoreline standards and prohibit towns from regulating shoreland altogether.

 

 

*This case is recommended for publication.

 

In Hartland Sportsmen’s Club, Inc. v. City of Delafield (2019AP740), the Court of Appeals District II upheld a conditional use permit for a sport shooting range in Delafield.

Hartland Sportsmen’s Club (HSC) sought a conditional use permit from Delafield to continue to operate a shooting range. A previous lawsuit between HSC and Delafield found that the city had arbitrarily and capriciously denied HSC the permit. After that court decision, Delafield did not issue the conditional use permit but instead reconsidered the permit by holding new hearings, issuing new findings and again denying the permit. HSC filed this lawsuit asking the court to direct the city to issue the permit based on the first court decision.

The Court of Appeals agreed with HSC that the prior court ruling required the city to issue the conditional use permit. The outright reversal of the city’s denial of the permit by the court in the prior case was appropriate because the violation of due process would not be cured by remanding for further proceedings on the permit. Municipalities do not have authority to revisit a previously denied permit when a court has invalidated the denial on a factual basis.

In Suhs v. Proassurance Casualty Co. (2019AP1062), the Court of Appeals District III dismissed a medical negligence case because the plaintiff failed to provide sufficient evidence of damages caused by a surgeon’s alleged negligence.

Plaintiff Suhs went to the emergency room with severe back pain that was diagnosed as a nervous condition requiring surgery. The surgeon performed the operation within 48 hours of the onset of Suhs’s symptoms. Suhs was discharged from the hospital after 18 days, but his condition did not improve completely.

Suhs filed the medical negligence claim against his neurosurgeon Dr. Mark Gardon, alleging that Gardon should have performed the surgery as soon as possible and failing to do so breached the standard of care.

The court found that Suhs failed to provide sufficient evidence for the negligence claim because

testimony from Suhs’s expert witness could not establish how soon the surgery should have been performed. The testimony provided no basis for a jury to determine damages specifically due to Gardon’s alleged neglilgence.

In Milwaukee Block 10 Properties, LLC v. City of Milwaukee (2019AP1424), the Court of Appeals District I upheld the property tax assessment for the Aloft Hotel in Milwaukee.

Milwaukee Block 10 Properties filed this lawsuit challenging its 2016 property tax assessment for the Aloft Hotel and seeking a refund of around $200,000. Block 10 argued the assessment improperly included income generated from guest parking in an offsite parking ramp owned by a third party that contracted with Block 10.

The appeals court disagreed, finding that the hotel property would continue to have the opportunity to generate parking income from guests if the hotel was sold. The parking income is “inextricably intertwined” with the business value of the Aloft property, so it was properly included in the assessment.