By TODD RICHMOND
MADISON, Wis. (AP) — Wisconsin regulators lack the inherent authority to require businesses to clean up contamination from PFAS chemicals and other toxic contaminants because legislators haven’t established any restrictions on the substances, a judge ruled Tuesday.
Waukesha County Circuit Judge Michael Bohren’s sweeping decision marks a major defeat for the state Department of Natural Resources and environmentalists struggling to deal with PFAS pollution across the state. The ruling means the DNR can’t require businesses to remediate contamination unless the agency includes PFAS chemicals in a list of hazardous substances developed through administrative rules, a process that often takes years.
Bohren said he understands that the DNR is responsible for protecting the state from pollution but “there’s a way to do it.” He added later that the DNR now seems to be operating “on a whim and fancy.”
Assistant Attorney General Gabe Johnson-Karp, who represented the DNR in the case, asked Bohren to stay the ruling given that it creates “significant concern about regulatory uncertainty.” Bohren agreed to a stay until a June 6 hearing on whether to continue it. Johnson-Karp told the judge he plans to appeal.
The ruling stems from a lawsuit that Wisconsin Manufacturers and Commerce, the state’s largest business group, and Leather Rich, Inc., an Oconomowoc dry cleaning business, filed in 2021.
According to the lawsuit, Leather Rich entered a DNR program designed to help businesses who voluntarily report pollution clean up their sites in 2019. The following year DNR officials declared that all business in the program needed to test for “emerging contaminants,” including PFAS, without explaining which of the more than 4,000 PFAS compounds to look for or what levels would be considered too high.
The agency lacked any basis in statute or rules to mandate such testing, the lawsuit maintained. What’s more, the DNR compiled a list of emerging contaminants without any notice, legislative oversight or opportunity for public comment, the lawsuit argued. The plaintiffs sought a declaration that the DNR can’t legally regulate emerging contaminants and that the agency define hazardous substances through a rule.
Drafting rules typically takes state agencies years. When the language is settled the regulations still must win legislative approval, a tall task right now given that Democratic Gov. Tony Evers controls the executive branch and Republicans run both the Senate and Assembly.
Environmentalists countered that the DNR must move quickly when the agency learns of contamination and shouldn’t be bogged down in a rule-making process that can take years.
A coalition of conservation groups, including the Clean Water Action Council, the River Alliance of Wisconsin and the Wisconsin Environmental Health Network, argued in court filings that the DNR derives its authority from state laws that govern pollution. Those laws include only a vague definition of hazardous substances, allowing the DNR broad authority to regulate them, they argued. PFAS chemicals are clearly hazardous and the DNR shouldn’t have to go through the rule-making process to establish that, they added.
If WMC and Leather Rich prevail, all efforts to remediate PFAS pollution across the state, including well testing and clean-up orders, would cease, the coalition’s law firm, Midwest Environmental Advocates, warned in a blurb on its website.
“WMC’s lawsuit could remove the only meaningful public health protection we have to address PFAS contamination in Wisconsin,” the firm said.
The state Department of Justice is defending the DNR against the lawsuit. Its attorneys have argued that there’s no real dispute that PFAS are toxic and state pollution laws give the DNR broad discretion over how to handle contaminants. What’s more, a judge lacks the authority to order the DNR to promulgate rules because rules are subject to legislative approval, they insisted.
PFAS is an acronym for per- and polyfluoroalkyl substances, man-made chemicals used widely in non-stick cookware and firefighting foam since the 1940s. Research suggests they can cause health problems in humans, including decreased fertility, developmental delays in children, increased risk of some cancers and a weakened immune system, according to the U.S. Environmental Protection Agency.
The DNR currently lists nearly 90 sites across Wisconsin with PFAS contamination. A number of municipalities are dealing with PFAS-contaminated groundwater, including Madison, Marinette, the town of Campbell just outside La Crosse and Peshtigo.
The DNR’s policy board adopted limits on PFAS in drinking water and surface waters that can support fish in February. The Legislature has yet to sign off on them, however. The board refused to impose standards for groundwater, however, citing the cost of replacing wells and installing treatment equipment at water utilities.
Democratic Attorney General Josh Kaul filed a lawsuit last month against Johnson Controls and Tyco Fire Products alleging they released fire-fighting foam into the environment that has contaminated the Marinette area’s soil, groundwater, surface water and air.
It’s unclear what impact Bohren’s ruling could have on that lawsuit. Midwest Environmental Advocates attorney Bruce Lee said the decision could negate the state’s authority to file such actions. Department of Justice spokeswoman Gillian Drummond didn’t immediately return a message.