Wisconsin Supreme Court to hear case with broad implications for PFAS cleanup

By Danielle Kaeding, Wisconsin Public Radio

This article was republished here with permission from Wisconsin Public Radio.

The Wisconsin Supreme Court will hear a case that could have sweeping effects on state environmental regulators’ authority to force businesses to clean up PFAS pollution under the state’s spills law.

The state’s high court announced late Wednesday that it would grant a petition by the Wisconsin Department of Natural Resources to hear the case. It stems from a 2021 lawsuit filed against the agency by Wisconsin Manufacturers and Commerce, or WMC, on behalf of Oconomowoc-based dry cleaner Leather Rich.

The suit challenged the DNR’s authority to force businesses to clean up PFAS contamination without standards for the chemicals, arguing the agency bypassed the state’s rulemaking process. A Waukesha County judge and state appeals court have ruled in favor of the WMC, the state’s largest business group.

Midwest Environmental Advocates, or MEA, intervened in the case on behalf of environmental groups and residents who argue the lawsuit threatens to undermine long standing protections under the spills law. MEA staff attorney Rob Lee said they’re pleased the state’s highest court will hear the case.

“The case has huge ramifications, not only when it comes to DNR’s ability to regulate per-and polyfluoroalkyl substances, or PFAS, which are a highly toxic emerging contaminant that are the focus of this case,” Lee said. “But depending on what the court decides, that could have implications for how the DNR deals with all hazardous substances.”

Representatives of WMC declined to comment.

PFAS are a class of thousands of synthetic chemicals used in everyday products like nonstick cookware, stain-resistant clothing, food wrappers and firefighting foam. The chemicals don’t break down easily in the environment. Research shows high exposure to PFAS has been linked to kidney and testicular cancers, fertility issues, thyroid disease and reduced response to vaccines over time.

In the suit, WMC and Leather Rich argued that DNR issued an interim policy under a voluntary cleanup program that required participants to test for PFAS and address contamination. They claim that interim decision is an unlawfully adopted rule that can’t be enforced.

WMC previously said the DNR should be expected to spell out which PFAS are hazardous substances through rulemaking. The state’s process of crafting regulations often takes years. Environmental advocates say the case is part of a broader effort by the Republican-controlled Legislature that has imposed barriers to crafting rules and setting standards that protect public health and the environment.

Since the lawsuit was first filed, state and federal regulators have placed limits on PFAS in drinking water. However, standards for the chemicals are still lacking in groundwater, a source of drinking water for two-thirds of state residents. Standards would be most critical for around one-third of residents who rely on private wells that draw directly from groundwater without treatment.

Communities across the state are struggling with PFAS contamination. They include the cities of Marinette, Eau Claire and Wausau in addition to towns like Peshtigo, Campbell and Stella. Enacted more than 40 years ago, the DNR has relied on the spills law to clean up emerging contaminants like PFAS.

Marinette resident and city alder Doug Oitzinger said the spills law must be protected at all costs to hold companies like Tyco and Johnson Controls accountable for PFAS contamination.

“If the DNR loses its authority to enforce the spills law regulations on PFAS, they will have no authority over Tyco in our community on this issue. It will disappear overnight,” Oitzinger said. “Then, you’re at the mercy of whatever Tyco feels like doing. Anytime they want to terminate any remediation actions that they’re currently taking, they could do that and there would be no consequences.”

A sign in Kayla Furton’s yard Thursday, May 20, 2021, in Marinette, Wis. Angela Major/WPR

PFAS stemming from the use of firefighting foam at Tyco’s fire training facility in Marinette has polluted private wells in the two communities. Tyco and Johnson Controls have said they’re cleaning up PFAS contamination regardless of lacking standards for the chemicals.

Even so, Lee said the spills law also affects the state’s ability to provide bottled water to residents with polluted wells. Without it, some residents living with PFAS contamination may be unable to afford bottled water.

“They very well may have to go back to drinking contaminated water, so this is very real for them, and not some sort of abstract case about the power of state agencies,” Lee said. “This is about whether or not the DNR can continue being responsive to their needs.”

If prior rulings are allowed to stand, the DNR would have to wait on lawmakers to pass legislation that allows the agency to continue crafting regulations for PFAS in groundwater. That comes after state regulators were forced to abandon proposed groundwater limits in December due to excessive compliance costs.

Both Republicans and Democrats in the Legislature introduced bills late in the last legislative session that would’ve allowed the agency to continue its work, but they failed to pass.

The Republican-controlled Legislature and Gov. Tony Evers have also been at odds over how to spend $125 million set aside under the current two-year budget to address PFAS pollution. Earlier this year, Evers vetoed a GOP bill that would have used the money to provide grants to communities and landowners, citing concerns over limits on regulators’ authority to test for and clean up the chemicals.