A state appeals court has upheld a lower court ruling that deals a blow to state environmental regulators’ authority to force businesses to clean up PFAS pollution.
In a 2-1 decision Wednesday, a three-judge panel said the Wisconsin Department of Natural Resources’ policy changes requiring testing and cleanup of PFAS under a voluntary cleanup program do not comply with state law.
The decision affirmed a Waukesha County circuit court judge’s ruling in favor of Wisconsin Manufacturers and Commerce, or WMC. That decision, issued nearly two years ago, stated regulators must first list PFAS as hazardous substances through the state’s rulemaking process.
The appeals court decision is a win for WMC, which filed a lawsuit against the state DNR, the agency’s secretary and its policy-making board in 2021. The business group was joined in the suit by Oconomowoc-based dry cleaner Leather Rich.
They argued the DNR lacked explicit authority to require the business to address PFAS pollution under its cleanup programs without standards for the chemicals.
In the suit, the groups argued the DNR bypassed the state’s rulemaking process as part of issuing an interim policy under a voluntary cleanup program that required participants to test for PFAS and address contamination. They said that forced the owner, Joanne Kantor, to invest more than $235,000 toward cleaning up the property, delaying her retirement in order to offset the cost of the investigation.
WMC and Leather Rich argued the interim decision is an unlawfully adopted rule that should be declared “invalid and unenforceable.” The DNR has maintained the state’s spills law gives the agency broad authority to issue the policy and require testing and cleanup of the chemicals.
In Wednesday’s decision, the appeals court sided with WMC.
“Because the DNR did not promulgate this rule in accordance with the required rulemaking procedures, the circuit court did not err in concluding that the interim decision is invalid and therefore unenforceable,” Judge Shelley A. Grogan wrote for the majority.
Judge Lisa S. Neubauer dissented in the ruling.
“No provision in the Spills Law requires the DNR to promulgate a rule identifying a substance as a hazardous substance before the law’s investigation and remediation obligations apply to it,” Neubauer wrote. “The majority errs in imposing such a requirement today.”
A DNR spokesperson said the agency is reviewing the ruling.
PFAS, or perfluoroalkyl and polyfluoroalkyl substances, are a class of thousands of synthetic chemicals found in firefighting foam and everyday products like nonstick cookware and stain-resistant clothing.
Multiple studies of people living and working in areas with high PFAS levels have shown links to serious health effects that include increased risk of kidney and testicular cancers, thyroid disease, fertility issues and reduced effectiveness of vaccines.
Since the lawsuit was first filed, the state has passed standards for PFAS in drinking water and surface water, but limits for the chemicals are still lacking in groundwater after the agency was forced to abandon its proposed standards in December due to excessive compliance costs. Around one third of state residents rely on private wells that draw from groundwater.
WMC has argued the agency should be required to follow the state’s rulemaking process to list PFAS as hazardous substances or set standards at which they’re dangerous to human health.
Environmental groups said the case undermines more than 40 years of protections under the state’s spills law, limiting the agency’s ability to force polluters to clean up contamination.
Midwest Environmental Advocates, or MEA, filed a brief in the case on behalf of environmental and public health advocates, as well as a local leader of a PFAS-contaminated community. The group said they hope the Wisconsin Supreme Court will reverse the decision.
“While we are disappointed by the court’s decision, we expect it to be appealed, and we are confident that the DNR’s efforts to keep Wisconsin families safe from PFAS contamination will ultimately be vindicated,” said MEA Staff Attorney Rob Lee in a statement. “In the meantime, a stay on the decision is in effect, which will limit the harm suffered by those living in and around PFAS contamination sites in Wisconsin until this case is ultimately resolved.”
Just last month, the Environmental Protection Agency proposed listing nine PFAS as hazardous substances under the Resource Conservation and Recovery Act. The agency has yet to finalize national standards for a slate of six chemicals in drinking water.
The lawsuit is one of two filed by WMC that challenged the agency’s authority to regulate PFAS. A Jefferson County judge ruled in 2022 that the DNR can test for PFAS as part of a separate case about wastewater sampling.
The decision comes as Republican lawmakers and Democratic Gov. Tony Evers are at odds over a GOP bill to address PFAS contamination that would limit the DNR’s authority to test for and clean up the chemicals.
The legislation sponsored by Green Bay Republican Sens. Eric Wimberger and Rob Cowles would prevent the DNR from taking enforcement action against people deemed “innocent landowners” as long as they let the agency clean up the chemicals at the state’s expense. The bill also requires the DNR to seek permission from landowners to test for PFAS, and it limits the agency’s ability to require testing unless the DNR has probable cause to believe PFAS levels would exceed state or federal standards.
Evers has said he will veto the bill. He offered a compromise for spending $125 million set aside under the current budget to help local governments and landowners address PFAS pollution, but GOP lawmakers have signaled they’re not interested in his offer. Communities and landowners have been waiting for months for financial aid, and they could be forced to wait even longer without a deal or action from the Legislature’s powerful budget-writing committee.
Editor’s note: This story will be updated.
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