Appeals Court sides with business group against the DNR on environmental enforcement

MADISON – In a victory for the state's largest business group, the state Court of Appeals ruled Wednesday that a Department of Natural Resources policy forcing businesses to clean up contaminants that lack formal statewide standards is "unenforceable."

The case stems from a 2021 filing in which Wisconsin Manufacturers & Commerce alleged that the DNR's policies requiring businesses to test for "forever chemicals" and remediate the contamination should not be allowed if the agency has not engaged in formal rulemaking and had those rules approved by the Legislature.

The organization said the regulation imposed undue costs and regulation on businesses.

Environmental groups argued the ruling would weaken the state's strongest pollution protection law, known as the "spills law, and hamstring efforts to protect Wisconsin residents from contamination.

The impact of the ruling could be muted, though. Since the original 2022 ruling from a Waukesha County circuit judge, Wisconsin has enacted standards for two of the most well-known PFAS — PFOA and PFOS — meaning the state can require remediation for those chemicals.

But there are concerns that the ruling could impact the cleanup of other future contaminants unless the DNR has engaged in a 30-month formal rule-making process and has the rule approved by the Legislature.

“This case could have implications for virtually every community in the state, not just those facing PFAS contamination," Tom Kilian, founder of Citizens for a Clean Wausau, said in a press release. "Here in Wausau, the Spills Law has enabled us to address decades of industrial contamination that has disproportionately impacted residents of Wausau's diverse, working-class neighborhoods. Their health depends on the state’s continued ability to remediate that contamination.”

Dean Hoegger, the president and executive director of Clean Water Action Council of Northeast Wisconsin, echoed that sentiment.

“Whatever the size or scale of a hazardous spill, Wisconsinites expect the state to respond quickly and get itcleaned up," he said in a release. "We want to make sure the state doesn’t lose that ability and that it continues to prioritize public health over industry profits.”

WMC celebrated the ruling.

"Today’s decision by the Court of Appeals protects the public’s right to know what the law requires,” WMC Litigation Center Executive Director Scott Rosenow, one of the lawyers representing WMC in this case, said in a press release.

“If the DNR expects every Wisconsinite to comply with the Spills Law, the DNR needs to explain in an official rule which PFAS it thinks are hazardous.”

More:Toxic 'forever chemicals' aren't defined as hazardous in Wisconsin — so the state can't force cleanup, judge says

A spokesperson for the DNR said the agency was reviewing the decision, but declined to comment.

In his 2022 ruling, Waukesha County Circuit Court Judge Michael Bohren ruled in favor of the WMC and an Oconomowoc dry cleaning business, Leather-Rich Inc., that the DNR could not require cleanup of toxic "forever chemicals" because they are not specifically listed as hazardous substances and do not have specific numerical levels to trigger a cleanup. 

The ruling upended the "spill law" that requires a spill to be cleaned by the entity that caused the pollution. 

WMC filed the claim alongside Leather-Rich. The two alleged in the complaint that the DNR undermined state law by requiring businesses to clean up emerging contaminants not yet regulated within Wisconsin during environmental remediation. 

More:PFAS trust fund remains unspent as Republicans, Democrats argue over legislation

More:‘Forever chemicals’ are a growing problem. Here’s what we found when we tested Wisconsin’s drinking water.

Previous case still awaiting appeal decision

In a separate case, a Jefferson County judge in 2022 also ruled that the DNR could test wastewater for PFAS but can't bring legal action against those causing the pollution until the Legislature establishes water quality standards specifically for the compounds. 

WMC filed the suit in Jefferson County in April 2021, claiming the DNR did not have the authority to sample for PFAS in the wastewater streams released by businesses across the state. WMC filed for a restraining order to halt the sampling program, temporarily halting testing until the DNR agreed to not release the name of any businesses tested. The DNR was able to resume testing after the agreement. 

The DNR conducted testing in 2021 at sites across the state to help determine the cost of enforcing proposed standards for PFAS in drinking, surface and ground water. The agency only tested at businesses that already held Wisconsin Pollutant Discharge Elimination System permits. 

The lobbying group estimated the cost of removing PFAS from water leaving manufacturing facilities could be in the tens of millions of dollars statewide, but recent documents from the DNR show that costs are estimated at around $5.6 million for the first year, then dropping down to $4 million in years 2 through 6.

The state does now have standards for PFAS in drinking water and surface waters, but the rulemaking process for the standards in groundwater has stalled, due to the high cost of addressing the issue for communities and businesses. The standard for PFOA and PFOS in drinking water is 70 parts per trillion in the state.

The federal government is in the process of setting standards, and has recommended a limit of 4 parts per trillion for both PFOA and PFOS. Those standards have not yet been approved and gone into effect.

More:New test could help Wisconsinites identify 'forever chemicals' in their blood

What are PFAS?

PFAS, or per- and polyfluoroalkyl substances, are a family of man-made chemicals used for their water- and stain-resistant qualities in products like clothing and carpet, nonstick cookware, packaging and firefighting foam.

The family includes 5,000 compounds, which are persistent, remaining both in the environment and human body over time.  The chemicals have been linked to types of kidney and testicular cancers, lower birth weights, harm to immune and reproductive systems, altered hormone regulation and altered thyroid hormones.

The chemicals enter the human body largely through drinking water. PFAS have been found across Wisconsin in both surface water and drinking water sources.

Laura Schulte can be reached at leschulte@jrn.com and on X at @SchulteLaura.