Judge Rules DNR Should Have Promulgated a List of Hazardous Substances

On April 12, Waukesha County Circuit Court Judge Michael Bohren ruled in favor of Wisconsin Manufacturers & Commerce (WMC) in a lawsuit involving two environmental cleanup programs managed by the state Department of Natural Resources (DNR). WMC, the state’s chamber of commerce and largest business lobby, filed the lawsuit last year along with dry cleaning company Leather-Rich. DNR, under the state’s “Spills Law” regulating the discharge of hazardous substances, operates the Remediation and Redevelopment (RR) and Voluntary Party Liability Exemption (VPLE) programs. State law includes a broad definition of “hazardous substances” but no specific listing, and DNR has never promulgated by rule or otherwise published a full list of the substances the agency considers hazardous.

Leather-Rich entered into the RR and VPLE programs to clean up volatile organic compounds on its property. The VPLE program allows a property owner to voluntarily investigate and remediate a contaminated property and receive a certification releasing the property and its owners from future liability. DNR approved Leather-Rich’s plan to remediate organic compounds.

DNR then began regulating chemicals it has designated as “emerging contaminants,” including PFAS (per- and polyfluoroalkyl substances), citing the broad language of the Spills Law as its statutory authority. Even though PFAS compounds had never been used on Leather-Rich’s property, the agency told the business that its remediation plan was no longer valid because it did not address PFAS testing and remediation. Leather-Rich withdrew from the program after spending more than $200,000 and submitting over 1,000 pages of documents to DNR, arguing that the agency acted outside of its legal authority and unnecessarily prolonged the site investigation. WMC joined with Leather-Rich to take those claims to court.

Following Judge Bohren’s oral ruling, WMC issued a press release praising the decision. If the ruling stands, DNR will have to use the rulemaking process or else ask the Legislature to establish a list of specific substances in order to regulate so-called “emerging contaminants” under the Spills Law. The judge also found that DNR unlawfully changed the requirements of the VPLE program without promulgating a rule.

Assistant Attorney General Gabe Johnson-Karp, representing DNR, said the agency will appeal the decision and ask for a stay of the order. Judge Bohren agreed to delay the effects of his ruling until May 12. A hearing on a motion to stay the judge’s ruling has been scheduled for June 6.

For further coverage of PFAS issues in Wisconsin, visit our PFAS Issue Update page or check out these recent articles: