Dane Co Airport 122721 20-01242022174309 (copy)

A Waukesha County judge on Tuesday ruled that the Wisconsin Department of Natural Resources cannot force companies to clean up hazardous substances, including so-called “forever chemicals,” without first creating a lawmaker-approved list of banned chemicals. Forever chemicals have been found in groundwater at the Dane County Airport.

A Waukesha County judge on Tuesday ruled that the Wisconsin Department of Natural Resources cannot force companies to clean up hazardous substances, including so-called “forever chemicals,” without first creating a lawmaker-approved list of banned chemicals.

The ruling from Judge Michael Bohren stems from a lawsuit filed against the DNR last year by Wisconsin Manufacturers & Commerce and Oconomowoc-based dry cleaner Leather-Rich, Inc. The suit alleges that the agency is acting outside of its legal authority by requiring businesses to investigate and clean up "emerging contaminants,” such as PFAS, under two environmental cleanup programs.

The judge said Tuesday that he recognizes the DNR’s need to protect against dangerous chemicals, but that the DNR “has to go through a rulemaking process in order to have the policy.”

Bohren’s order means that the DNR has to wait for lawmakers to establish and approve a list of hazardous chemicals before it can enforce so-called “spill laws.” Spill laws require anyone who "possesses or controls a hazardous substance which is discharged or who causes the discharge of a hazardous substance" to take the necessary actions to restore the affected air, land or waters. Creating a list of hazardous chemicals could take years, and state law does not currently define "hazardous substance."

The DNR plans to appeal, Assistant Attorney General Gabe Johnson-Karp, who is representing the agency, said Tuesday. Accordingly, the judge stayed his own decision until after a June 6 motion hearing.

High levels of PFAS — known as "forever chemicals" because of their ability to exist for centuries — have been detected in communities throughout Wisconsin, including Marinette, Madison and French Island, near La Crosse. The chemicals, found in firefighting foams and household products such as nonstick cookware, cleaning products and some food packaging, have been linked to cancer, reproductive problems, thyroid disease and other health issues.

“While today’s circuit court ruling is disappointing, we expect it to be appealed and are confident that the DNR’s efforts to keep Wisconsin families safe from PFAS contamination will ultimately be vindicated,” said Rob Lee, a staff attorney with Midwest Environmental Advocates. 

MEA filed an amicus brief on behalf of several other environmental organizations in October 2021.

The ruling was celebrated by Wisconsin Manufacturers & Commerce.

“When the government ignores the rulemaking process, employers are left in the dark as to what regulations they must follow. Businesses cannot afford to have that kind of uncertainty, and we do not think it is too much to ask for DNR to simply follow the law as written,” said Scott Manley, WMC executive vice president of government relations. “Today’s decision assures the business community that regulators must operate within their own authority.”

Bohren’s decision came just weeks after the Wisconsin Natural Resources Board — which dictates policy for the DNR — green-lit weaker regulations for PFAS chemicals in drinking water in the state.

The board approved the weaker standards on a 6-1 vote, signing off on a standard of 70 parts per trillion of toxic PFAS chemicals instead of the more strict 20 parts per trillion the DNR recommended.

The Natural Resources Board’s standards were unrelated to Tuesday’s ruling. However, when considered together, the two highlight how regulators in the state have struggled to form a response to PFAS chemicals in Wisconsin.

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